High Court Digest PDF
High Court Digest PDF
SUPREME COURT & HIGH COURT DIGEST,
FROM
AUGUST, 2001 TO FEBRUARY, 2009
1 A.O.P
(1) Trust having family trusts for minor as beneficiaries ‐ Settlor creating
trust for benefit of her twelve grand children but naming forty‐five
trusts as beneficiaries instead of twelve grand children – Tribunal
finding trust created for carrying on business and not a genuine trust
– No infirmity – No finding that twelve grand children of settlor
opted to join together for purpose of conducting business –
Tribunal holding assessment to be in status of association of persons
at maximum marginal rate – Incorrect ‐ Tribunal to determine as to
who is correct person and in whose hands income to be taxed ‐
Matter remanded – Income‐tax Act, 1961, ss. 164, 167A.
Ganesh Chhababhai Family Trust v/s. CIT
(2008) 296 ITR 129(Guj)
(2) Applicability of s. 167A – Admittedly, on the date of formation of the
association, the shares of members were determinate or known –
Tribunal has found that no new member was admitted after the AOP
was formed and throughout the existence of the AOP, the same
members continued – Tribunal rightly held that the clauses contained
in the trust deed enabling the trustees to enroll more members did
not convert the specific determinate shares of the existing members
into indeterminate shares – Hence, provisions of s. 167A were not
applicable – Mere possibility of admission of new members to the
association in future did not change the determinate shares of
existing members.
Mani Enterprices , CIT v/s.
(2004) 187 CTR 215 =267 ITR 157=180 Taxation 84 =
136 Taxman 507 (Guj)
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(3) Discretionary Trust – Status of individual and not as AOP – Special
deduction under section 80L for individuals – Available ‐ Trust –
Interest paid to beneficiaries – Deductible.
Harjivandas Juthabhai Zaveri & Anr. Dy. CIT
(2002) 258 ITR 785 (Guj)
(4) Income from house property – Property in the hands of co‐owners ‐
Rent from lease separately assessable in hands of individual co‐
owners and not as an association of persons.
Shivsagar Estate, CIT v/s.
(2002) 257 ITR 59 = 177 CTR 107 = 124 TAXMAN 606(SC)
2. ACCOUNTING ‐ METHOD OF
1. Bona fide change from mercantile to cash system – In the absence of
finding of the AO that he is not in a position to deduce the income
of the assessee on the basis of the changed method of accounting
(from mercantile to cash system) employed by the assessee or any
evidence to show that the new method of accounting has not been
consistently followed by the assessee, the finding of the Tribunal
that the change was not a bona fide change cannot be accepted and
therefore the change in the method of accounting could not be
rejected.
Echke Ltd. v/s. CIT
(2009) 221 CTR 642 = (2008) 173 Taxman 79 = 207 Taxation 57=
5 DTR 1(Guj)
2. Accounting Standards, AS – 22 – Companies Act. 1956, s. 211(2).
Bilhari Investment P. Ltd., CIT v/s.
(2008) 299 ITR 1= 215 CTR 201 =168 Taxman 95 =
204 Taxation 191 (SC)
3. Change by Dept. ‐ Method adopted by assessee – Accepted by
Department over several years – Subsequent decision of Department
to change method – Department has to record a finding that
assessee’s method distorts profits – Income Tax Act, 1961, s. 145.
Bilhari Investment P. Ltd., CIT v/s.
(2008)299 ITR 1 = 215 CTR 201 = 168 Taxman 95 =
204 Taxation 191 = 3 DTR 329(SC)
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4. Assessment years 1984‐85 and 1985‐86 – Merely because by
virtue of change in method of accounting employed by assessee
its taxable income stands reduced in a particular year it can
by no stretch of imagination be treated as a factor that said
action was undertaken with an intent to deliberately reduce
tax burden – Whether merely because change in method of
accounting is undertaken after having filed estimate of income
during accounting period in question on basis of earlier
method of accounting it can be learned as a half hearted act
or can be considered to be a relevant factor for considering
bona fides of action – Held, no – Term change itself indicates
that it is a change from an existing state of affairs and hence
fact that assessee had been following mercantile system of
accounting since its inception can have no relevance while
determining whether change in method of accounting is bona
fide or not ‐ Where Assessing Officer had not recorded any
finding that due to change in method of accounting from
mercantile to cash, he was not in a position to property
deduce income of year under consideration and in fact
assessment order itself showed what was amount which
could be treated as commission receipt on accrual basis and
what was amount actually received by assessee as commission
on basis of cash system of accounting finding of Tribunal that
change in method of accounting was such that change
disabled Assessing Officer to property deduce income was a
finding without any basis and Tribunal was not justified in not
accepting change in method of accounting.
Echke Ltd. v/s. CIT
(2008) 173 Taxman 79 = 207 Taxation 57 = 5 DTR 1 =
(2009) 221 CTR 642(Guj)
5. Change of ‐ Assessment year 1986‐87 – In accounting year 1984‐85,
assessee company had given loan to a company ‘A’ on interest –
Since its inception, it was following mercantile system of accounting
and accordingly even though there was no specific stipulation with
regard to periodicity of payment of interest on loan given to ‘A’
interest on it used to be accounted for an accrual basis – However
subsequently assessee started facing certain difficulties in following
mercantile system of accounting in respect of interest income, viz
compulsion of payment of tax without receipt of interest not
allowing TDS while calculating interest under section 215,
commencement of penalty proceedings under section 273 not
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giving credit while raising demand of tax deductible etc. – Assessee
therefore decided to change its method of accounting for interest
income and interest payment from mercantile system to cash
system of accounting – Change in method of accounting adopted by
assessee was genuine and bona fide.
Coromandal Investment (P) Ltd., Asstt. CIT v/s.
(2008)174 Taxman 194 = 12 DTR 152(Guj)
6. Closing stock – Valuation – Established principle – To value at
cost or market price whichever was lower – No export during
financial year – Adopting London Metallic Exchange Price at
less than cost price – Not permissible.
Hindustan Zinc Ltd. ,CIT v/s.
(2007)288 ITR 391= 161 Taxman 162=210 CTR 282 =
201 Taxation 335 (SC)
7. Estimation of GP rate – IT authorities having rejected assessee’s
books of account citing several defects and low GP rate, there is
no reason to take a different view – AO having estimated the
GP of the assessee on the basis of a comparable case, and the
CIT(A) and the Tribunal having successively reduced the same,
there is no arbitrariness on the part of IT authorities.
Kachwala Gems v/s. Jt. CIT
(2006) 206 CTR 585(SC)
8. Contract receipts – Percentage completion method – By the
time the contract was completed, the total receipts had borne
charge of tax and assessee had derived no advantage as
such – Apart from that, Department is bound to accept the
assessee’s choice of method regularly employed, except
where it is found that true income, profits and gains cannot
be arrived at by the method employed by the assessee –
Also, a regular method adopted by an assessee cannot be
rejected merely because it gives benefit to the assessee in
certain years – Assessee’s method of accounting is in
consonance with standard accounting practice and has been
constantly followed by the assessee and Revenue has
accepted the same in subsequent years – Thus, the impugned
amount which has been added in working out the profit is
not chargeable to tax in the year under consideration.
Advance Construction Co. (P) Ltd., CIT v/s.
(2005) 193 CTR 127 = 143 Taxman 61 =275 ITR 30 =
186 Taxation 55(Guj)
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9. Valuation of stock – Assessee firm was engaged in export of
woolen blankets – Assessee valuing its closing stock of
finished goods at market rate filed its return – Assessing
Officer found that said method resulted in abnormal gross
profit ratio and invoking section 145 adopted method of
valuing closing stock at cost or market price, whichever was
lower, and made addition – By showing market value of closing
stock, assessee had earned potential profit out of itself
inasmuch as stock in trade remained with assessee at closing
of accounting year and putting stock at market value did not
and could not bring in any real profit which was necessary for
taxing income under Act and, therefore, rejecting of accounts
maintained by assessee for valuation of closing stock by
Assessing Officer was not in accordance with law..
Sanjeev Woolen Mills v/s. CIT
(2005) 149 Taxman 431 =199 CTR 509 = 279 ITR 434 (SC)
10.Method adopted by Assessing Officer has to be consistent with
principles of accountancy – Income Tax Act, 1961, s. 145.
Indo Nippon Chemical Co. Ltd., CIT v/s.
(2003)261 ITR 275=182 CTR 291= 30 Taxman 179 =
176 Taxation 1(SC)
11.Valuation of closing stock ‐ Cost or market value, whichever is less ‐
Assessee having valued the stock of transformers at market price on
the basis of the quotation of a third party after the original customer
refused to accept delivery thereof, said market price, in the absence
of any basis or evidence, could not be substituted by the price
which was subsequently realized by the assessee.
Voltamp Transformers Ltd. v/s. CIT
(2008) 217 CTR 254 = 207 Taxation 155 = 7 DTR 84(Guj)
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12. Accounting Standards ‐ Vires of Accounting Standard 22 – Sec. 642
of the Companies Act, 1956, gives power to the Central Government
to make rules in addition to its power to alter the Schedules and
thereof, the rule framed under s. 642 adopting AS 22 is not ultra
vires – AS 22 which requires the companies to make provision for
deferred tax arising out of timing difference is meant to give effect
to the concept of true and fair account contemplated by s. 211(1)
and supplements the requirements of measurements and
recognition and therefore, it is not inconsistent with the provisions
of the Companies Act, including Sch. VI.
J.K Industries Ltd. & Anr v/s. Union of India & Ors.
(2007) 213 CTR 301 = 165 Taxman 323 = (2008) 297 ITR 176 (SC)
3. ACCRUAL – TIME OF
(1) Entire interest on debentures taxed in subsequent year – Tribunal
justified in deleting the said interest income from the total income
of the year under reference.
Sabarmati Investment (P) Ltd., CIT v/s.
(2004) 188 CTR 570(Guj)
(2) Interest on deferred sale consideration – As per revised agreement
interest was chargeable on accrual basis w.e.f 1st July, 1979, instead
of 1st July, 1978 – Tribunal erred in deleting the amount of interest on
accrual basis for asst. yrs. 1981‐82 and 1982‐83 merely by relying on
its order in the case of the assessee for earlier years.
Sarabhai Chemicals Pvt. Ltd., CIT v/s.
(2002) 176 CTR 43= 122 Taxman 734 = 170 Taxation 674=
258 ITR 747(Guj)
(3) Accrual ‐ Cash incentive for exports ‐ Mercantile system of
accounting ‐ Right to receive incentive accrues when claim filed.
Punjab Bone Mills , CIT v/s.
(2001) 251 ITR 780 = 170 CTR 558(SC)
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(4) Disputed claim for subsidy ‐ Assessee's claim under fodder subsidy
scheme not accepted by Government ‐ Although a decree was
passed by the Civil Court for the amount of subsidy assessee did
not receive the payment of subsidy and the matter was pending in
appeal ‐ Income had not accrued to the assessee ‐ Mere fact that the
assessee has credited the amount in its books is not decisive ‐
Said amount not assessable in the assessment year in question.
Bavla Gopalak Vividh Karyakari Sahakari Mandli Ltd., CIT v/s.
(2001) 171 CTR 602(GUJ)
4. ACTUAL COST
(1) Amount of subsidy is not to be deducted from the cost of
assets for the purpose of calculation of depreciation ‐
Amol Dicalite Ltd. , CIT v/s.
(2006)205 R 521= 286 ITR 648 = 197 Taxation 330 (Guj)
(2) For Investment allowance & depreciation – Actual cost –
Government subsidy not deductible in computing actual cost.
Swastik Sanitary Works Ltd. , CIT v/s.
(2006) 286 ITR 544= 205 CTR 517 (Guj)
(3) Interest payable on purchase of machinery – Assessee purchased
machinery under a scheme of payment by instalments financed by
ICICI – Interest included in instalments required to be paid was for
the period after the asset in question was first put to use – Hence,
Expln. 8 to s. 43(1) is clearly attracted and the interest paid or
payable in connection with the acquisition of the machinery cannot
be included in the actual cost of such asset either for the purpose
of depreciation or investment allowance.
Anang Polyfil (P) Ltd. , CIT v/s.
(2004) 187 CTR 576 = 136 Taxman 692= 267 ITR 266 = 180 Taxation
217 (Guj)
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(4) Depreciation/Investment allowance – Subsidy for establishing
industry in backward area – Should not be deducted from the cost of
plant and machinery for allowing depreciation and investment
allowance.
Cadila Chemicals (P) Ltd., CIT v/s.
(2003)179 CTR 37 = 259 ITR 692 (Guj)
(5) Depreciation ‐ Assets used by another person – Power of Assessing
Officer to determine actual cost ‐ Effect of explanation 3 to section
43(1) – Assessing Officer empowered to determine actual cost
only if transfer of assets was for claiming depreciation on
enhanced cost ‐ Company taking over assets of firm on its
dissolution – Depreciation claimed on enhanced value of only three
items – Valuation of such assets by registered valuer prior to
dissolution of firm – No evidence that transfer was made with a
view to claiming depreciation on enhanced cost ‐ Assessee entitled
to depreciation on such enhanced cost.
Ashwin Vanaspati Industries v/s. CIT
(2002)255 ITR 26 = 174 CTR 90 = 125 Taxman 59 (Guj)
(6) Plant and machinery received under loan‐cum grant scheme
from Indian Dairy Corporation – Machinery in question was
imported by the Indian Dairy Corporation and supplied to the
assessee under loan cum grant assistance scheme – Such subsidy
does not partake of the incidents which attract the conditions for
their deductibility from actual cost ‐ Therefore, depreciation was
admissible on full value of machinery without deducting 30 per
cent of the value of plant and machinery.
Mehsana District Co‐op. Milk Producers Union Ltd. v/s. CIT
(2002)177 CTR 333 = 258 ITR 780 (Guj)
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5. AQUISITION (PURCHASE) OF IMMOVABLE PROPERTY
(1) Agreement of sale – Form No. 37‐I filed ‐ Appropriate Authority
passing order for purchase by government ‐ High Court – Writ
petition challenging order on ground provisions invalid –
Interim stay of purchase order vacated by High Court –
Department paying entire sale consideration and putting the
property to auction sale – Highest bidder paying amount and
put into possession – Original purchaser thereafter questioning
auction sale on ground that grounds for purchase by
government not disclosed – Not permissible.
Krishna Swamy S. Pd. V/s. Union of India
(2006)281 ITR 305 = 151 Taxman 286 = 201 CTR 183 =
193 Taxation 194 (SC)
(2) S. 269UD ‐ Purchase of immovable property by Central
Government ‐ Writ petition challenging purchase order ‐
Single judge of High Court setting aside order and directing
owner to return amount paid by appropriate authority with
interest at 15 per cent per annum – Division Bench directing
that no interest be paid – Appeal to Supreme Court ‐
Supreme Court directing payment of interest at 7½ per cent.
R.Shanmuganathan, Appropriate Authority, Income Tax
Department v/s.
(2006) 287 ITR 558(SC)
(3) Payment or deposit of consideration ‐ Withdrawal of challenge
to order of purchase – In view of dispute as to apportionment
of the amount of consideration between the vendors and the
purchasers, the consideration of Rs. 240 lakhs was deposited
with the Appropriate Authority as required under sub‐s (2) of
s. 269UG – Amount kept in fixed deposit and same renewed
periodically – Parties not interested any more in pressing their
challenge to the order of purchase and subsequent
consequential orders that if they are paid entire amount of
consideration with interest thereon in the agreed ratio – In
view of consensus between the vendors and the purchasers,
all of whom are now agreeable to the order of purchase being
operated, acted upon and implemented, the order of purchase
stands and it is open to the IT authorities to act upon the
same without any objection from any of the parties – Further,
the Appropriate Authority is directed to encash the fixed
deposit and pay over the amount with interest accrued
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thereon till the date of encashment to each of the vendors
and the purchasers in the agreed proportion – Also vendors
are to hand over vacant possession of the property to the
Department.
Shivram Vishwanath Deshmukh v/s. Sexena P. CIT & Ors.
&
Rasiklal M. Dhariwal & Anr. V/s. Sexena P. CIT & Ors.
&
Ravindra Kuries (P) Ltd. v/s. ITO & Ors.
(2005)193 CTR 370 = 185 Taxation 317 = 277 ITR 363 (Guj)
(4) Payment or deposit of consideration ‐ Failure to pay interest
despite directions of the Court ‐ Purchase price was
deposited in fixed deposit during the course of pendency of
the petitions challenging the order of purchase – Subsequently,
said order was acted upon the basis of consensus arrived at
between the parties – Court had given specific directions to
Appropriate Authority to encash the fixed deposit along with
accrued interest and pay over the amounts to the respective
parties in the specified proportion after deducting tax at
source on the interest amount ‐ Review applications against
the said order of the Court stand rejected and the Court
categorically directed the Department to pay the amounts
along with interest accrued thereon by 15 th Dec. 2004 –
Payment of interest not made despite the aforesaid specific
directions – Accordingly respondent is directed to pay over the
amount of interest as per directions of the Court along with
interest till the date of payment ‐ Respondent having not
complied with the directions issued by the Court, it is also
directed to pay costs of Rs. 2,500 to the petitioners.
Shivram Vishwanath Deshmukh V/s. Appropriate Authority
(2005) 193 CTR 386 = 277 ITR 381 (Guj)
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(5) Rights of auction purchaser – Vesting of property in Central
Government – Order under s. 269UD(1) passed by the
Appropriate Authority on 25 th Nov. 1989 – Property vested in
the Central Government on that date, free from all
encumbrances ‐ No injunction was operating on that date
either against the original owner or the IT Department –
Therefore, SBI, to whom the transferor was indebted, was not
required to be heard at all in proceedings under Chapter XX‐C
– Again, once the auction was conducted as agreed by all the
respondents before the DRT, the successful bidder was
entitled to obtain execution of conveyance in his favour – In
view of the directions of DRT to deposit the sale proceeds
with the bank in interest bearing deposit, it cannot be
contended that conveyance can be executed only on
depositing the sale consideration in ZAO (CBDT) account ‐
Directions issued to execute conveyance deed in favour of
the petitioner.
Panorama Builders (P) Ltd. v/s. Union of India
(2005) 196 CTR 515 = 149 Taxman 634 (Guj)
(6) Payment or deposit of consideration ‐ Interest on delayed payment –
Merely because the petitioner transferor had not made any
application for investment of the amount of consideration deposited
with the Appropriate Authority, the Authority was not absolved
from his duty to exercise his discretion under s. 269UG(4) to invest
the amount so as to earn interest ‐ Further, the fact that the
petitioner had issued a receipt that amount was received in full and
final settlement of the payment of apparent consideration, would
not come in the way of claim for interest as the receipt did not
indicate that the petitioner was giving up his claim for interest –
Hence, petitioner is entitled to receive interest on the delayed
payment of amount of apparent consideration ‐ However, interest
is not payable on the amounts paid by the Appropriate Authority to
the intending transferee towards refund of earnest money and to
SBI against the outstanding dues of the petitioner – Having regard to
the rates of interest prevailing at the relevant time, respondents
are directed to pay interest @ 6 per cent per annum – However,
interest on interest is not payable.
Ratilal H. Nayak v/s. Union of India
(2005)194 CTR 151 =142 Taxman 55 =186 Taxation 267=
275 ITR 333 (Guj)
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(7) Payment or deposit of consideration ‐ Review petition vis‐à‐vis
undertaking to pay interest on agreed consideration –
Appropriate Authority itself had taken the stand that the
parties would be paid the amount of consideration deposited
in the fixed deposit along with interest thereon ‐ Order under
s. 269UD passed on consensus of the parties – Provisions of s.
269UG(4) do not prohibit the Appropriate Authority from
paying over the interest on the amount of consideration ‐
There was no illegality either on the part of Appropriate
Authority in making the said submission or on the part of
standing counsel – Thus, the argument of the Revenue that a
concession made by a counsel which is not in consonance with
the statutory provisions cannot bind the party is
misconceived – In fact, the stand of the Appropriate Authority
and of the standing counsel at the hearing was in consonance
with the provisions of sub‐s. (4) of s. 269UG – No case is made
out for review of directions of the Court vis‐à‐vis payment of
interest ‐ Power of review can be exercised for correction of a
mistake and not to substitute a view – Vendors having written
several letters to the Department asking it to take over
possession of the property, Department is not justified in
refusing to pay interest on the ground that it did not have
possession of the property in question during the pendency
of the petitions.
Rasiklal M. Dhariwal & Ors. , Appropriate Authority v/s.
(2005)193 CTR 377 =185 Taxation 317= 144 Taxman 704= 277
ITR 370 (Guj)
(8) Acquisition of immovable property by Central Government
Condition precedent – Public notice in Official Gazette – Service of
notice on transferor, transferee and other concerned persons prior
to notice in official gazette – Does not affect validity of acquisition –
Gets jurisdiction from publication of notice in official gazette –
Notice on transferor, transferee and other concerned persons –
Requirement of natural justice – Not basis for jurisdiction.
Pearl Mech. Engg. And Foundry Works P. Ltd., CIT v/s.
(2004)267 ITR 1 =188 CTR 289 = 136 Taxman 586 =
181 Taxation 35 (SC)
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(9) Validity – Limitation – Appropriate Authority filed the statement in
Form No. 37‐I as being defective – Assuming that the ‘filing order’
of the Appropriate Authority was illegal, the appellants could have
challenged the same – Instead they voluntarily filed a fresh
statement in Form No. 37‐I and requested the Appropriate
Authority to act on the same – It was the appellants’ and the
transferor’s act of filing the fresh statement under s.269UC which
gave rise to a fresh period of limitation – Therefore, it was open to
the Appropriate Authority to act on the second statement and pass
the purchase order within a period of two months from the receipt
of that statement – The first order could not, in the circumstances,
be said to be invalid on this ground – Besides, the appellants’
challenge to first purchase order does not really survive after the
disposal of the first writ petition.
Validity – Description of property – Agreement for transfer of 1/3rd
undivided share of L in the property – Original order under s. 269UD
set aside ‐ By the time fresh order was passed the property was
partitioned among the co‐owners by an oral partition and the
portion falling to the share of L became identifiable – There was
nothing wrong in mentioning the identified property in the
purchase order – Order under s. 269UD giving description of
property by boundaries was valid.
Applicability of Chapter XX‐C – Date of transfer – Appellants or their
nominees who were purchasers of the property took possession of
the demarcated portions of the premises pursuant to eight deeds
of sale executed in April/May, 1989 and not prior thereto – It could
not be contended that the transfer had taken place before Chapter
XX‐C came into operation in the State of Andhra Pradesh –
Moreover, having given up the case before the High Court the
appellants cannot be permitted to reopen the issue at this stage.
Fair market value – Interference in writ proceedings – Apart from
comparable Sale instances, the Appropriate Authority considered
the location of the property, its frontage and accessibility in coming
to the conclusion that the consideration was understated – High
Court has affirmed this valuation – There is no reason to disturb the
finding of fact.
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Payment of deposit of consideration ‐ Contention not raised earlier
– Contention that the Central Government had not deposited or
tendered the amount of apparent consideration within the time
prescribed under s. 269UF r/w s. 269UG(1) is an issue of fact raised
for the first time before the Supreme Court and is liable to be
rejected on this ground alone – Nevertheless, the deposit was made
by the Central Government within one month from the first
purchase order and admittedly received by the transferor without
any protest ‐ Contention not valid.
Hans Raj Agarwal & Anr. V/s. Chief CIT & Ors.
(2003)179 CTR 89 = 259 ITR 265 = 126 Taxman 603 =
174 Taxation 221(SC)
(10) Notice by appropriate authority – Reasons and materials considered
for tentative conclusion should be disclosed ‐
Jagdish Electricians India P. Ltd., Appropriate Authority
of Income Tax v/s.
(2003) 264 ITR 468(SC)
(11) Appropriate Authority – Order for pre‐emptive purchase – Failure of
Central Government to tender amount of apparent consideration
within time fixed by state – Order abrogated.
Garg (A.K)(Dr.) , Union of India v/s.
(2002) 256 ITR 660, 124 Taxman 315 = 171 Taxation 177 (SC)
(12) Assessee purchasing certain property and filing Form 37 – I for
issue of no objection certificate – Appropriate Authority making
order of pre‐emptive purchase and asking the owner to give
possession of the property – Writ petition filed in High Court – High
Court granting interim stay order restraining the department to
proceed – Revenue filing an appeal before Apex Court – Apex Court
holding bids for the property may be called but confirmation of
sale to be made by the Court – Highest bidder applying for
confirmation of sale ‐ Sale confirmed by the Apex Court – In view of
the writ pending before the Hon’ble High Court, order of pre‐
emptive purchase quashed – On appeal, to Supreme Court by
Department,it was held that it was not proper for the High Court to
cancel the order of pre‐emptive purchase – Order of the High Court
set aside and sale confirmed.
Shatabadi Trading & Investment (P) Ltd. & Ors.,
Union of India & Ors. V/s.
(2002) 167 Taxation 354 (SC)
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(13) Fair market value ‐ Scope of interference under Art. 226 ‐ Where
several methods are available for finding out the value of the
property and if one or the other method is adopted by the
Department and that may be reasonable, it may not call for any
interference ‐ However, if there are loopholes or lacunae in the
process of reasoning adopted by the Appropriate Authority in
determination of fair market value of the property there is scope for
interference ‐ High Court quashed the order of the Appropriate
Authority on the ground that the authority had compared the
value of incomparable properties and arrived at the value of the
property in question relying on baseless presumption that the
tenants would vacate the property soon and also adopted
different methods of valuation for different properties ‐ No
interference warranted by S.C.
Kailash Suneja & Anr. , Appropriate Authority & Anr. v/s.
(2001) 169 CTR 401 = 118 TAXMAN 295 = 251 ITR 1(SC)
(14) Fair market value ‐ Relevant considerations ‐ Basis for concluding
that the salvage value of the building was 10 times more than that
indicated in the show cause notice was not disclosed ‐ Valuation
reports obtained before the issue of show cause notice did not
indicate any undervaluation ‐ Instances of property relied upon by
the parties was rejected on irrelevant consideration ‐ Order of
Appropriate Authority rightly quashed by High Court.
Chiranji Estate (P) Ltd. & Anr., Union of India v/s.
(2001) 169 CTR 406(SC)
(15) Fair market value ‐ Relevant considerations ‐ Approach of the High
Court that where the property is tenanted and is being sold the
Department cannot adopt the stand of invoking the provisions of
Chapter XX‐C may not be correct ‐ Appropriate Authority allowed
due deductions for tenancy while making comparison of subject
property with other properties which were not tenanted‐High Court
was not correct in holding that the approach of the Appropriate
Authority was illegal, irrational or arbitrary ‐ Further, Department
had given details of valuation report and other materials in the
show cause notice itself ‐ Non supply of valuation report itself was
not ground to interfere with the order of Appropriate Authority ‐
Besides, when the transferor allowed the property to be sold
pursuant to the orders of the Court and the Supreme Court having
allowed auction of the property, High Court could not have
brushed aside the same ‐ Order of Appropriate Authority
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restored.
Shatabadi Trading & Investment (P) Ltd,& Ors., Union of India v/s.
(2001)169 CTR 408(SC)
(16) Agreement for sale of immovable property ‐ Submission by parties
of Form No. 37 ‐ I for no objection certificate ‐ Appropriate
Authority ‐ Notice to parties without giving sufficient
opportunity of being heard ‐ Instance relied on for holding
apparent consideration to be very low ‐ Document relating to not
furnished ‐ Principles of natural justice ‐ Gross breach ‐ Order for
pre‐emptive purchase set aside ‐
Sona Builders v/s. Union of India
(2001) 251 ITR 197 = 170 CTR 180= 167 Taxation 372(SC)
(17) Appropriate authority ‐ Order of pre‐emptive purchase ‐ Should be a
speaking order ‐ Property under consideration compared with sale
instance property on basis of FSI ‐ No indication in order as to what
that FSI was and how it was calculated ‐ Order for pre‐emptive
purchase not valid.
Hindumal Balmukand Investment Co. P. Ltd. v/s Appropriate
Authority.
(2001) 251 ITR 660 (SC)
(18) Fair market value ‐ Comparable sale instance ‐ Appropriate
Authority had allegedly compared the immovable property in
question with a sale instance which was not appropriate and did
not consider the comparable sale instance cited by the appellants ‐
Difference in time between the transaction in question and the said
comparable sale instance was not so vast that the sale instance
should have been altogether ignored ‐ Order of Appropriate
Authority set aside and restored to its file for reconsideration in
the light of said sale instance.
Rakesh C. Rastogi & Anr. v/s. Appropriate Authority & Anr.
(2001)171 CTR 185(SC)
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6. ADVANCE RULING
Double taxation avoidance agreement ‐ Article providing for
non‐discrimination ‐ Non resident company ‐ Application for ruling
on whether lesser rate of tax applicable to domestic companies
should be available to it ‐ Authority for advance rulings ‐ Jurisdiction
‐ Department raising objection ‐ Authority seeing that objection was
of some substance but ruling on merits against applicant ‐
Supreme Court ‐ Appeal by special leave by applicant ‐ Ruling set
aside ‐
Societe Generale v/s. CIT
(2001) 251 ITR 657(SC)
7. ADVANCE TAX
(1) Tax paid after the relevant financial year – Tax paid after the relevant
financial year is not in the nature of advance tax as envisaged under
the provisions of ss. 207 to 219 and therefore, assessee is not
entitled to payment of interest under s. 214(1) on the refund of
said tax.
Garden Silk Mills Ltd. v/s. Dy. CIT & Ors.
(2006) 204 CTR 441= 195 Taxation 618 (Guj)
(2) Refund pursuant to appellate order – Assessee was entitled to
interest under s. 214 on refund arising on account of Tribunal’s
order on appeal.
Industrial Machinery Mfg. (P) Ltd. , CIT v/s.
(2006) 202 CTR 83 = 193 Taxation 435= 282 ITR 595 (Guj)
(3) Unanticipated addition to income pursuant to revisional
proceedings – Once the addition to income is kept out of
consideration, the advance tax paid by the assessee is not
below the stipulated limit of 75 per cent of the total tax
payable – Nothing has been brought on record to rebut the
findings of the CIT(A) and the Tribunal that the assessee could
not have anticipated the upward revision in income at the time
when he filed the estimate of advance tax – Therefore,
assessee cannot be held liable to pay interest under s. 215 –
Tribunal justified in deleting the levy of interest.
Jayendra H. Kharawala, CIT v/s.
(2006)200 CTR 420 = 282 ITR 205=193 Taxation 127 Guj)
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(4) Advance Tax ‐ Interest payable by assessee u/s. 217 ‐
Requirement to file estimate of Advance Tax – Only for
purpose of ensuring that tax in advance is paid on stipulated
dates – Intention of legislature – Returned income and assessed
income of latest previous year and subsequent years nil – No
tax paid by way of self assessment – No liability to pay advance
tax – Requirement of filing statement does not arise ‐ No
interest under section 217 can be levied against assessee –
Gujarat Alkalies & Chemicals Ltd., CIT v/s.
(2005)276 ITR 535 = 146 Taxman 278 = 197 CTR 495=189
Taxation 736 (Guj)
(5) Addition to income on account of undervaluation of closing
stock – It could not anticipate any addition of this nature and
magnitude at the time of filing of estimate of advance tax –
Therefore, it cannot be said that the assessee had committed
any default – Levy of interest under s. 215 rightly deleted
even though the additions made by AO stand confirmed by the
Tribunal and advance tax paid by the assessee is less than 75
per cent of assessed tax.
Rainbow Industries (P) Ltd., CIT v/s.
(2005) 196 CTR 180 = 277 ITR 507 = 148 Taxman 267 =
189 Taxation 397 (Guj)
(6) Underestimation of income – CIT(A) found nothing on record to
suggest that the default, if any, on the part of the assessee was
deliberate and cancelled the levy of interest – Tribunal right in
confirming the order of the CIT(A) – Further, amount involved being
small i.e Rs. 11,940, it is not necessary to set aside the orders of the
Tribunal and the CIT(A) merely for remanding the matter to the AO.
Synbiotics Ltd., CIT v/s.
(2004) 187 CTR 472 = 266 ITR 674(Guj)
(7) Interest payable by assessee in case of underestimate – Assessing
Officer called upon assessee to explain under estimation of advance
tax payable in first two instalments – Assessing Officer held that
assessee had not produced any evidence to show that in earlier
quarters its sales were less and sales had shot up in subsequent
quarter and also held that assessee failed to prove with help of any
figures regarding sales, purchase, etc., that estimate filed was based
on any reasonable data – Since assessee had underestimated
advance tax payable by it and had not given any satisfactory
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explanation for same, Tribunal was right in holding that interest
under section 216 was rightly charged.
Baroda Electric Meters Ltd. v/s. CIT
(2003)128 Taxman 72 = 184 CTR 134 (Guj)
(8) Advance Tax ‐ Interest Payable by Govt. u/s. 214
Excess payment of Advance Tax – Interest payable by Government ‐
Assessee entitled to interest under section 214 on excess advance
tax payment.
Gujarat State Warehousing Corpn. , CIT v/s.
(2002) 256 ITR 596 = 172 CTR 546 = 166 Taxation 117 = 122 Taxman
373(Guj)
(9) Advance Tax – Interest Payable by Assessee u/s. 215 Shortfall in
payment of Advance Tax ‐ Levy of interest under section 215 is
mandatory.
Sarabhai Chemicals Pvt. Ltd. , CIT v/s.
(2002) 257 ITR 355 = 173 CTR 193 = 121 Taxman 755(Guj)
(10) Discretion of ITO – Interest under s. 215 becomes payable by the
assessee as a result of operation of law and it is not made
dependent upon the discretion of the ITO ‐ Discretion which is
conferred upon the ITO is in respect of reduction or waiver of
interest – While deciding as to whether the interest is payable by
the assessee or not the ITO has only to consider whether the
required conditions are satisfied or not.
Fabriquip (P) Ltd. , CIT v/s.
(2002)177 CTR 149 = 123 Taxman 820 = 171 Taxation 291(Guj)
(11) Advance Tax ‐ Interest payable by assessee u/s. 216 ‐ Interest
payable by assessee in case of understimate ‐ ITO had not given any
reason for levying interest under section 216, nor had he
recorded requisite finding as contemplated by clause (a) of section
216 – Tribunal held that charging of interest was not justified ‐
Tribunal ought to have set aside order of ITO and remanded
matter to ITO for passing a fresh order as contemplated by section
216.
Synbiotics Ltd. v/s. CIT
(2002) 122 Taxman 743 = 176 CTR 330 = 170 Taxation 650 (Guj)
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8. ADDITIONAL TAX
(1) Additional Tax ‐ on adjustment u/s. 143(1)(a) ‐ Loss – Law
applicable – Effect of amendment of section 143(1A) with effect
from 1‐4‐1989 – Loss returned by assessee – Reduction of loss
under section 143(1)(a) – Additional tax can be levied – Income
Tax Act, 1961, s. 143 ‐
Gujarat State Co‐op. Marketing Federation Ltd. CIT v/s.
(2007) 290 ITR 160 = 196 Taxation 189(Guj)
(2) Assessment ‐ Intimation on basis of return ‐ Assessee declaring loss
in return ‐ Loss reduced after adjustment ‐ Additional income tax on
difference ‐ Can be imposed ‐ Income Tax Act, 1961, s.143(1)(a),
(1A) (as retrospectively amended in 1993).
Indo Gulf Fertilizers & Chemicals Corpn. Ltd.,Union of india.v/s.
& Modi Cement, Union of India v/s
(2001) 251 ITR 200(SC)
9. AGRICULTURAL INCOME
(1) Income from sale of tree leaves grown on trees and tea
manufactured by assessee ‐ Sale of green tea leaves – Income from
sale of green tea leaves is purely income from the agricultural
product and not income derived from the combined activities i.e
growing of tea leaves and manufacturing of tea and, therefore it is
assessable only under the Bengal Agrl. IT Act, 1944 and cannot be
treated as incidental to business and taxed under the 1961, Act .
Belgachi Tea Co. Ltd. & Ors., Union of India & Anr. V/s.
(2008)216 CTR 337 = 304 ITR 1 = 170 Taxman 209 =
206 Taxation 547 = 7 DTR 100 (SC)
(2) Subsequent user for non‐ agricultural purposes by the buyer – If the
land is recorded as agricultural land, it has to be treated as
agricultural land irrespective of inflation or escalation in price
thereof – Sale of agricultural land in the later year at a higher rate
did not change the character of the land ‐
Shashiben, CWT v/s.
(2006)205 CTR 298(Guj)
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(3) Agricultural Development Allowance – Weighted Deduction
Quantification – Entire expenses incurred on dissemination of
information or demonstration of modern techniques and methods
of agricultural animal husbandry or dairy or poultry farming or
advice on such technique or method is eligible for deduction under
s. 35C.
Mehsana District Co‐op. Milk Produceres Union Ltd. v/s. CIT
(2002)175 CTR 612 = 256 ITR 322 = 166 Taxation 339 = 121 Taxman
689(Guj)
(4) Assessee incurred expenditure on agricultural development and
claimed weighted deduction of entire expenditure ‐ Tribunal held
that only 10 per cent of such expenditure was eligible for
weighted deduction – Tribunal was wrong in holding that only
10 per cent of expenses incurred was eligible for weighted
deduction and not entire expenditure under section 35C.
Kaira Dist Co‐op Milk Producer Union Ltd., CIT v/s.
(2002) 124 Taxman 473(Guj)
(5) In view of decision in case of Kaira District Co‐operative Milk
Producers’ Union Ltd. V/s. CIT (2002) 253 ITR 766/ 120 Taxman 910
(Guj), entire expenses incurred on dissemination of information or
demonstration of modern techniques and methods of agricultural
animal husbandry or dairy or poultry farming or advice on such
techniques or method is eligible for deduction under section 35C.
Mehsana District Co‐op. Milk Producers Union Ltd. , CIT v/s .
(2003) 130 Taxman 281
(6) Agricultural Land ‐ Computation of capital gains – Cost of acquisition
– Transfer of land converted from agricultural to non‐agricultural ‐
Circular stating that cost of acquisition would be value on date of
such conversion ‐ Circular in force in assessment year 1971‐72 –
Cost of acquisition to be calculated as per circular for assessment
year 1971‐72 .
Vyas B.B , CIT v/s.
(2003)261 ITR 73 =128 Taxman 166 =174 Taxation 556 = 183 CTR
108 (Guj)
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10. APPEAL
(a) ADDITIONAL EVIDENCE
Additional evidence not produced before Assessing Officer despite
grant of time – Concurrent finding by appellate authorities that
sufficient opportunity was granted – Question of fact – Income tax
Act, 1961, s. 256 – Income tax Rules, 1962, r. 46A – Income Tax
(Appellate Tribunal) Rules, 1963 r. 29.
Fairdeal Filaments Ltd. v/s. CIT
(2008)302 ITR 173=205 Taxation 285 = 219 CTR 351= 3 DTR 170(Guj)
(b) FAILURE TO APPEAL IN THE CASE
(1) Decision against Revenue – Failure of Department to appeal ‐
General rule – Departure from – Cases in which small revenue
involved – Policy decision not to prefer appeals where revenue
involved is below certain amount – Where effect of decision
revenue neutral – Provide foundation for making departure from
general rule – Where facts situation same in earlier years – Revenue
cannot appeal, if no appeal filed for earlier year.
J.K Charitable Trust , CIT v/s.
(2008) 308 ITR 161 = 15 DTR 41(SC)
(2) Failure on the part of Department to appeal from a decision –
Whether a bar to appeal in another case – Not where there is just
cause, or it is in the public interest or where divergent views
expressed by tribunals of High Courts.
Gangadharan (C.K) v/s. CIT
(2008) 304 ITR 61 = 11 RC 248 = 172 Taxman 87 =
218 CTR 1 = 206 Taxation 626 = 10 DTR 161 (SC)
(c) GENERAL
(1) Right of appeal – Nature of – Conditions imposed on right
should not in effect take away right.
Bhavya Apparels P. Ltd. v/s. Union of India
(2007) 9 RC 531(SC)
(2) Prior Deposit ‐ Section 17 of the Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002 –
Appeal – Right to – Requirement of deposit of 75 per cent of amount
claimed before entertaining an appeal (petition) under section 17 is
an oppressive, onerous and arbitrary condition against all canons of
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reasonableness and such a condition is invalid and it is liable to be
struck down – .
Mardia Chemicals Ltd. v/s. Union of India
(2004) 136 Taxman 360 = 182 Taxation 1 (SC)
(3) Powers of appellate authority to annul the assessment ‐ Power to
remand – Provision of s. 128(2) of the Customs Act, 1962 vests the
appellate authority with powers to pass such order as it deems fit
confirming, modifying or annulling the decision appealed against ‐
This implies that the appellate authority has the power to set aside
the decision which is under appeal before it and to remand the
matter to the authority below for fresh decision.
Umesh Dhaimode, Union of India v/s.
(2002) 176 CTR 97, 124 Taxman 422 (SC)
(d). LOW TAX EFFECT
Appeal to Supreme Court – Leave to appeal ‐ In view of low tax
effect and CBDT Instructions regarding filing of appeal, etc.
application filed by the Revenue seeking leave to appeal to the
Supreme Court against the judgment of Gujarat High Court in
CIT v/s. Kiranbhai H. Shelat & Anr. (1998) 147 CTR (Guj) is
rejected.
Dineshchandra S. Shah , CIT v/s.
(2008) 219 CTR 247 = 13 DTR 98(Guj)
(e). MONITARY LIMIT
Assessment years 1995‐96 and 1996‐97 – Filing of an appeal is a
statutory right but it can certainly be regulated by Board by issuance
of orders, instructions or circulars this would not amount to taking
away right of filing of appeal or that such right is prohibited by
executive instructions – When Supreme Court or territorial High
Court has declared law on a question it is not open to Tribunal to
direct that circular issued by Board prescribing monetary limit for
filing appeal should be given effect to and not decision of Supreme
Court or territorial High Court ‐ However such decision of Supreme
Court or High Court must be brought to Tribunal’s notice by
department and an objection to that effect must be raised by
department – If no such objections are raised by departmental
representatives at time of hearing of appeal against applicability of
that circular despite there being an exception and Tribunal
dismisses appeal by applying that circular matter can not be
remanded to Tribunal for deciding appeal on merits – However, in
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matters where such objections are raised and Tribunal has
dismissed appeal only on ground of low tax effect an indulgence is
required to be shown by Court and for this limited purpose,
department is permitted to move an appropriate application before
Tribunal for deciding appeal on merits.
Concord Pharmaceuticals , CIT v/s.
(2008) 174 Taxman 529 = 220 CTR 117=208 Taxation 420 =
14 DTR 186 (Guj)
11. APPEAL TO CIT(A)
ADDITIONAL GROUND
(1) Claim for deduction of expenditure disallowed in another year
– Assessee’s claim for a genuine expenditure made bona fide in
asst. yr. 1986‐87 having been rejected, additional ground raised
by assessee before CIT(A) claiming the said expenditure in
asst. yr. 1985‐86 ‐ Appeal for which assessment year was
pending before CIT(A) was rightly held to be admissible by the
Tribunal.
Vadilal Industries Ltd., CIT v/s.
(2008) 217 CTR 318 = 6 DT 98(Guj)
(2) Maintainability – Advance tax – Interest – Order to give effect
to appellate order–Refusal to grant interest – Interest payable
under section 214 part of assessment and deemed to be tax–
Appeal maintainable –Income Tax Act,1961, ss.214, 244.
Prabhudas Kishoredas Tobaco Products (P) Ltd. CIT v/s.
(2007) 295 ITR 61= (2008) 203 Taxation 256(Guj)
(3) Maintainability ‐ Penal Interest ‐ Order of AO refusing to grant
interest under s. 214 whilegiving effect to Tribunal’s order –Order
under s.154 which has the effect of enhancing the assessment or
reducing refund or an order refusing to allow a claim is appealable
before CIT(A) – Further, order passed by AO giving effect to the
appellate order has the same characteristic as the original order
against which appeal is maintainable – Therefore, Tribunal was
justified in holding that the order refusing to grant interest under s.
214 was an appealable order.
Industrial Machinery Mfg. (P) Ltd. , CIT v/s.
(2006) 202 CTR 83 = 282 ITR 595 = 193 Taxation 435(Guj)
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12. APPEAL TO HIGH COURT
(1) Filing of appeal or application for reference by Income tax
authority ‐Whether revenue can be precluded from filing an
appeal if in respect of some other years involving an identical
dispute no appeal has been filed by it – Held, yes.
J.K Charitable Trust, CIT v/s.
(2008) 262 Taxman 105 = 15 DTR 41(SC)
(2) Reference ‐ Appeal ‐ Question of fact or law – Payments made
by company ‐Whether for benefit of shareholder – Question of
fact – Income Tax Act, 1961, s. 260A.
Mukundray K. Shah, CIT v/s.
(2007) 290 ITR 433 = 209 CTR 97 = 160 Taxman 276 =
200 Taxation 272 (SC)
(3) Powers – Concurrent findings of fact ‐ No jurisdiction to
reappraise evidence – Income Tax Act, 1961, s. 260A.
P. Mohanakala, CIT v/s
(2007) 291 ITR 278= 210 CTR 20 = 161 Taxman 162=
200 Taxation 349 (SC)
(4) Decision of Tribunal based on findings of fact – No question of
law arises – Search and seizure ‐ Block assessment –
Undisclosed income – Property purchased by assessee –
Commissioner (Appeals) holding that Revenue had not proved
understatement of price – Appellate Tribunal ‐ Upholding
decision of Commissioner (Appeals) – Decision based on
questions of fact – Income‐tax Act, 1961, ss. 158BC, 260A .
Kalyanasundaram (P.V), CIT v/s.
(2007) 294 ITR 49 = 212 CTR 97=164 Taxman 78 =
(2008) 202 Taxation 206 (SC)
(a) SUBSTANTIAL QUESTION OF LAW
(1) Expenditure incurred to create brand name with enduring benefit,
whether allowable–Short term loans, whether could be allowed
under section 35D–Miscellaneous income from sale of empty
containers, whether qualifies for deductions under sections 80HH
and 80‐I‐Are substantial questions of law – Matter remanded to High
Court for consideration– Income tax Act, 1961, ss. 35D, 37, 80HH, 80‐
I, 260A.
Core Health Care Ltd., Deputy CIT v/s. Deputy CIT v/s.
(2008) 298 ITR 194 = 167 Taxman 206 = 215 CTR 1 =204 Taxation
107 (SC)
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(2) Penalty under s. 18(1)(c) – Question whether penalty under s.
18(1)(c) could be cancelled on the ground that the assessee was
entitled to benefit under the Amnesty Scheme, particularly when
the assessee had revised his return several times subsequent to
search operation is a substantial question of law– High Court having
erred in not answering the question, impugned order is set aside
and the matter remitted to the High Court for fresh consideration in
accordance with law .
Taktawala, C.A, CIT v/s.
(2008)215 CTR 399 = 14 DTR 34(SC)
(3) Notice under s. 143(2) vis‐à‐vis reassessment ‐ Assessee having
challenged the reassessment proceedings on the ground that notice
under s. 143(2) was not issued within one year and the High Court
having not recorded any finding based on law on the question of
applicability of s. 143(2) to the reassessment and dismissed the
appeal summarily, impugned order is set aside and the High Court is
directed to entertain the appeal under s. 260A and to reappraise the
matter in the light of the arguments raised by the parties.
L.N Hota & Co. v/s. CIT & Anr
(2008) 215 CTR 481 = 168 Taxman 313 = 301 ITR 184= 5 DTR 34(SC)
(4) Delay in depositing TDS – Salary ‐Assessee had deducted TDS from
salary paid to expatriate employee – However, only after survey
conducted under section 133A, it deposited TDS so deducted with
Government – High Court dismissed appeal filed by department
under section 26OA on ground that no question of law arose –
Matter was to be remitted to High Court since a question of law,
namely, as to whether assessee was entitled to plead reasonable
cause for not depositing tax, arose in instant case – Held, yes.
Air Liquide India Holding (P) Ltd., CIT v/s.
(2008) 167 Taxman 221(SC)
(5) Contractors / Sub‐contractors, TDS on payments to ‐ Question which
arose before High Court in appeal was whether assessee was liable or
not liable to deduct TDS under section 194C – High Court dismissed
appeal summarily – Whether question that arose before High Court
was a substantial question of law and High Court ought to have
decided said question.
Sirmour Truck Operators Union, CIT v/s.
(2008) 170 Taxman 242 = 4 DTR 170, 171(SC)
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(6) Deduction of tax source – Contractors / sub contractors payments to
‐ Whether question as to whether freight paid by assessee (AOP) to
truck owners who in turn were members of said AOP was subject to
TDS under section 194C(2) is a substantial question of law – Held,
yes.
Sirmour Truck Operators Union, CIT v/s.
(2008)170 Taxman 489(SC)
(7) Assessment – Book profits basis ‐ Tax credit in respect of tax
paid on deemed income of certain companies ‐ Short payment
– Interest – Whether penal or mandatory – Substantial
question of law – Income tax Act, 1961, ss. 115JAA, 234B, 234C,
260C, 260A.
Xpro India ltd., CIT
(2008) 300 ITR 337 = 215 CTR 400 = 168 Taxman 181=4 DTR 217(SC)
(8) High Court dismissed appeals summarily rejecting as to whether
assessee was liable or not liable to deduct TDS section 194C –
Whether question under consideration was a substantial question
of law and High Court ought to have decided said question – Held,
yes.
Ambuja Darla Karsog Mangu Transport Co‐op. Society Ltd., CIT v/s.
(2008)168 Taxman 223 = 4 DTR 172 (SC)
(9) Case was to be remanded to High Court for a fresh decision in
accordance with law, after framing a substantial question of law, in
light of judgment of Supreme Court in Manish Maheshwari v/s.
Asstt. CIT (2007) 289 ITR 341/159 Taxman 258 – Held yes.
Anwar Pasha v/s. CIT
(2008) 167 Taxman 222(SC)
(10) Assessment year 1989‐90 – Where High Court had disposed of
appeal without considering as to whether a substantial question of
law was involved or without framing question(s) of law, case was
to be remitted to High court for a fresh decision – Held, yes.
Consolidated Engg. Enterprises v/s. Asstt. CIT
(2008) 167 Taxman 223(SC)
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(11) Where High Court failed to frame substantial question of law as
required under section 260A and interfered with concurrent findings
given by Commissioner (Appeals) and Tribunal without giving any
reasons, matter was to be remitted to High Court for consideration –
Held, yes.
P. Iya Nadar Charitable Trust v/s. CIT
(2008) 167 Taxman 224(SC)
(12) Non speaking order – High Court having dismissed the appeal by a
non speaking order merely stating that no substantial question of law
arises for consideration, impugned order is set aside and the matter
is remitted to the High court for fresh consideration on merits and in
accordance with law.
Speed Lines (P) Ltd. V/s. CIT
(2008) 214 CTR 13 = 170 Taxman 243(SC)
(13) Transfer ‐ Assessment year 1995‐96 – Assessee firm had
enhanced value of depreciable assets by revaluation and
thereafter it was converted into a company under Chapter IX of
Companies Act, 1956 – Assessing Officer held that capital gain
had arisen on transfer of assets from partnership firm to
company and made addition accordingly – On appeal, Tribunal
deleted addition holding that revaluation of assets of assessee
firm and subsequent conversion of firm into limited company
which had taken over such assets at enhanced value would not
result into any capital gain liability under Act – High Court
dismissed appeal of revenue holding that no question of law,
much less substantial question of law arose out of order of
Tribunal – Questions of law raised by revenue before High
Court were substantial questions of law which arose from
order of Tribunal – Therefore impugned order of High Court
was to be set aside and High Court was to be directed to record
its finding on those questions .
Well Pack Packaging , CIT v/s.
(2008) 174 Taxman 102 = 220 CTR 538 = 16 DTR 73(SC)
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(14) Appeal to High Court – Summary dismissal – Effect ‐ Summary
dismissal – Effect – while hearing an appeal even for deciding
whether a substantial question of law arises or not from the
order of the Tribunal, the High Court does not exercise either
original jurisdiction or the jurisdiction to issue writs – Only
jurisdiction that the High Court exercises is the appellate
jurisdiction – Therefore, merely because the High Court
decides in the first instance whether or not a substantial
question of law arises from the order of the Tribunal, it cannot
be stated that the High Court does not exercise the appellate
powers or that there is no decision on appeal when the High
Court dismisses an appeal holding that no substantial question
of law arises from the order of the Tribunal – Contention that
the powers exercised by the Court at the stage of admission of
appeal are akin to powers exercised by the apex Court under
Art. 136 of the Constitution is not sustainable – Whenever an
order of a subordinate forum is carried in appeal, operative
part thereof merges into the judgment, order or decision of the
superior Court after the confirmation, reversal or modification,
as the cases may be,and the order of the lower Court or the
forum does not have any independent existence thereafter in
relation to the issue which was carried before the appellate
Court or forum – Thus, where the High Court comes to the
conclusion that no substantial question of law arises on a
particular issue, it cannot be stated that the subject matter of
the controversy between the parties has not been dealt with
by the High Court – Decision of the Tribunal is affirmed on the
issue brought before the High Court and for all intents and
purposes it is the decision of the High Court which is operative
and which is capable of being given effect to.
Nirma Industries Ltd. v/s. Dy. CIT
(2006)202 CTR 198 =283 ITR 402=155 Taxman 330=194
Taxation 157(Guj)
(15) Appeal under section 260A on substantial question of law ‐ Cannot
be dismissed without a decision – Income Tax Act, 1961, s. 260A.
Nabhinandan Digamber Jain , CIT v/s.
(2003)263 ITR 516 = 185 CTR 197= 133 Taxman 663 =
(2004)178 Taxation 393 (SC)
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(16) Nature of right to appeal – Statutory and not inherent ‐ Substantial
question of law ‐ To be stated in memorandum of appeal – Tests to
determine – Questions to be formulated at the time of admission ‐
High Court cannot formulate questions after conclusion of
arguments ‐ Income Tax Act, 1961, s. 260A.
Janardhana Rao (M) v/s. Jt. CIT
(2005)273 ITR 50=142 Taxman 722=193 CTR 585=185 Taxation
433(SC)
(17) Findings of fact of Appellate Tribunal – Cannot be disturbed –
Income Tax Act, 1961, s. 260A.
Janardhana Rao (M) v/s. Jt. CIT
(2005)273 ITR 50=142 Taxman 722=193 CTR 585=185 Taxation
433(SC)
(18) Question not formulated earlier – Nothing in sub.s (5) of s.
100 takes away or abridges power of the High Court to hear,
for reasons to be recorded, the appeal on any other
substantial question not formulated earlier, if it is satisfied
that the case involves such question –However, no reason
recorded nor the memorandum of appeal indicated any other
question and, therefore, High Court’s judgment was liable to
be set aside.
Phool Pata & Anr. V/s. Vishwanath Singh & Ors.
(2005) 197 CTR 598 = (2006) 191 Taxation 415 (SC)
(19) Formulation of substantial question of law – Where the High
Court is satisfied that any substantial question of law is
involved, it shall formulate that question under sub.s (4) of s.
100 of CPC – Second appeal has to be heard on the question
so formulated – Impugned judgment passed by the High Court
does not show that any substantial question of law has been
formulated or that the second appeal was heard on the
question, if any, so formulated – Impugned judgment is set
aside and the matter is remitted to the High Court for disposal
in accordance with law.
Ram Sakhhi Devi (Smt) v/s. Chhatra Devi & Ors.
(2005)197 CTR 602 (SC)
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(20) Interest on Advance tax – Assessment order – Order to “charge
interest” but no specific direction to charge interest under
section 234B – Appellate Tribunal’s decision following Ranchi
Club that interest could not be charged in notice of demand –
Whether decision in Ranchi Club that interest could not be
charged in notice of demand affected by subsequent decision
in Anjum M.H Ghaswala on this point ‐ Question of law
arises– Income Tax Act, 1961, ss. 234B, 260A.
Insilco Ltd., CIT v/s.
(2005) 278 ITR 1 = 198 CTR 114=149 Taxman 112(SC)
(21) Order or affirmation ‐ Points urged have to be dealt with by
High Court ‐ Reasons for affirmation to be given though not
elaborately – Income Tax Act, 1961, s. 260A.
Mangalore Ganesh Beedi Works v/s. CIT
(2005)273 ITR 56=142 Taxman 720=193CTR 590=185Taxation
440(SC)
(22) Depreciation on leased machinery – Boiler leased out by assessee
carrying on business of leasing of assets – Tribunal upheld the
finding of the CIT(A) allowing depreciation on the boiler – As regards
rate of depreciation, the Tribunal held that the depreciation of 40
per cent allowed by the AO did not call for any interference ‐ Once
a leasing or finance company, which owns machinery and leases it to
third party is found to have satisfied the other requirements of the
provision, it is entitled to depreciation in respect of such machinery
or plant ‐ In view of the aforesaid settled position of law, no
substantial question of law arose out of the order of the Tribunal –
Appeal dismissed.
Pinnacle Finance Ltd., CIT v/s.
(2004) 188 CTR 446 = 268 ITR 395 = 139 Taxman 328 (Guj)
(23) Industrial undertaking ‐ Special deduction – Liquidated damages on
account of breach of contract – Whether part of profits received
from industrial undertaking ‐ Substantial question of law ‐ Appeal
to be heard on merits –
Alpine Solvex Ltd., CIT v/s.
(2003) 259 ITR 719 = 181 CTR 21 = 129 Taxman 16 (SC)
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(24) Income from undisclosed sources – Tribunal deleted the addition
made by the AO on account of ‘on money’ allegedly paid by the
assessee for purchase of shops and substantially reduced the
addition made on account of low household expenses shown by the
assessee – Tribunal has appreciated the facts and evidence on record
to come to its conclusion ‐ No substantial question of law arises –
Appeals dismissed.
Jivanlal Nebhumal (HUF), Dy. CIT v/s.
(2003) 182 CTR 370 = (2004) 134 Taxman 660 (Guj)
(25) Erroneous and prejudicial order – After considering the facts and
circumstances of the case and the affidavit filed by the assessee
during the course of proceedings under s. 158BC, the AO came to
the conclusion that the cash of Rs. 20 lakhs seized from the assessee
formed part of of Rs. 40 lakhs which were already disclosed by the
assessee under VDIS, 1997 – Simply because the CIT does not agree
with that view, it cannot be said that the order passed by the AO was
erroneous and prejudicial to the interests of the Revenue–A different
view is hardly possible – Tribunal having endorsed the view taken by
the AO after proper appreciation of facts on record and evidence
produced before it, the finding arrived at is absolutely a finding of
fact, and no substantial question of law arises – Appeal dismissed.
Karai, D.P, CIT v/s.
(2003) 185 CTR 497 = (2004) 178 Taxation 605 = 266 ITR 113 (Guj)
(26) Appellate Tribunal – Direction to allow adjustment of interest
expenses – Direction to grant relief with respect to profit on sale of
raw materials – Direction not to charge interest for default in
payment of advance tax and deferment of advance tax – Raise
substantial questions of law.
Nirma P. Ltd. , CIT (Asst.) v/s.
(2002) 257 ITR 57 = 177 CTR 105 = 124 Taxman 608(SC)
(27) Cash Credit – Identity of creditors proved – Amounts received by
account payee cheques – Initial burden of proving credits
discharged – Source of credits need not be proved ‐ Fact that
explanation was not satisfactory would not automatically result in
deeming amounts as income of assessee – Tribunal holding amount
representing cash credits not including in total income of assessee
‐ Justified ‐ No substantial question of law.
Rohini Builders, CIT (Deputy) v/s.
(2002) 256 ITR 360 = (2003) 127 Taxman 523=182 CTR 373 (Guj)
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(28) Cost of construction of building ‐ Besides relying on the report of
the DVO, the AO referred to other aspects like cost of construction
of other buildings in the same locality and the quality of
construction in arriving at the cost of the buildings in question –
Estimation of correct cost of construction would involve re‐
appreciation of evidence – Appeals not admitted as they do not
raise substantial questions of law – Matter not remanded to the
AO having regard to the amount of tax effect and lapse of time.
Mahavir Builders, ITO v/s.
(2002) 178 CTR 72 (Guj)
(29) Scope and parameters of ‐ No need to be of general importance ‐
Memorandum of appeal ‐ Failure of appellant to formulate question
‐ Opportunity to be granted ‐
Santosh Hazari v/s. Purushottam Tiwari
(2001) 251 ITR 84(SC)
13. APPEAL TO SUPREME COURT
(1) Nature of jurisdiction – Can make order for doing complete justice –
Petition for special leave to appeal – Power of Supreme Court –
Constitution of India, arts. 136, 142
Tanna and Modi v/s. CIT
(2007) 292 ITR 209 =210 CTR 273 = 161 Taxman 329 =
200 Taxation 194 (SC)
(2) More than one questions framed – High Court answering one
question – Remanding matter to Appellate Tribunal for fresh
consideration on questions relating to whether expenditure
was capital in nature – Supreme Court ‐ Holding remand to
be proper owing to paucity of material for decision ‐
S.T.N Textile Ltd. , Dy. CIT v/s.
(2005) 279 ITR 209 = 199 CTR 209=149 Taxman 348 =
192 Taxation 7 (SC)
(3) Decision in the case of one assessee ‐ Department accepting and
not challenging correctness – Not open to department to challenge
in the case of other assessees, without just cause.
Berger Paints India Ltd. v/s. CIT
(2004)266 ITR 99 =187 CTR193 =135 Taxman 586 =
180 Taxation 10 (SC)
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(4) High Court – Decision differing from decisions of other High Courts –
Appeal to Supreme Court – Certificate of fitness to be granted ‐
Income Tax Act, 1961 s. 261.
Berger Paints India Ltd. v/s. CIT
(2004)266 ITR 99 =187 CTR193 =135 Taxman 586 =
180 Taxation 10 (SC)
(5) Appeal to – Where High Court had found in relation to same
assessee in other cases that assessee could not be taxed because
doctrine of mutuality applied to it, in these circumstances no useful
purpose would be served in proceeding with other questions in
appeal in relation to that assessee.
Cawnpore Club Ltd., CIT v/s.
(2004) 140 Taxman 378 = (2005) 184 Taxation 205 (SC)
(6) Department not appealing from an earlier decision – Rule that
Supreme Court will not grant leave to appeal from a later decision –
Applies only in cases of decisions of Jurisdictional High Courts –
When there are divergent views of High Courts ‐ Supreme Court
would set conflict at rest.
Hemalatha Gargya v/s. CIT
(2003)259 ITR 1=128 Taxman 190= 182 CTR 107=174 Taxation758
(SC)
(7) Petition for special leave to appeal – Dismissal in limine – Effect –
Constitution of India, Art. 136. Central Board of Direct Taxes –
Power to issue order to avoid genuine hardship –Wheter such power
can be exercised in relation to voluntary disclosure scheme which
does not form part of Income Tax Act is doubtful.
Hemalatha Gargya v/s. CIT
(2003)259 ITR 1=128 Taxman 190= 182 CTR 107 =
174 Taxation758 (SC)
(a) MAINTAINABILITY
Rule of consistency ‐ Question raised in the appeals being covered
by an earlier decision of the same High Court, which has not been
challenged by the Revenue and has attained finality appeal is not
maintainable before the Supreme Court.
Surat City Gymkhana, Asstt. CIT v/s.
(2008) 216 CTR 23 = 300 ITR 214 = 170 Taxman 612= 5 DTR 115(SC)
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14. APPEAL TO TRIBUNAL
(1) Scope ‐ Subject matter of appeal – Neither the AO nor the CIT(A)
having undertaken the exercise of quantification of loss said to have
been incurred by the assessee on sale of non convertible
debentures, the Tribunal could not have undertaken the said
exercise on its own without first deciding the controversy before it
i.e whether the transaction was genuine and the loss was
allowable.
Deepak Nitrite Ltd. v/s. CIT
(2008) 220 CTR 374 = 206 Taxation 422 = 307 ITR 289
= 175 Taxman 230 = 7 DTR 313 (Guj)
(2) Tribunal to deal with contentions raised and evidence
produced before it – Assessee maintaining gold ornaments
account in rojmel – Additions in absence of stock register and
quantitative tally – Assesssee filing overall quantity details in
rojmel and contending same was practice in line of business –
Tribunal failing to deal with contention but finding no evidence
or material to support contention – Prima facie not correct –
Tribunal’s order set aside and matter restored to Tribunal for
decision afresh – Income Tax Act, 1961.
Dagina v/s. Deputy CIT
(2007)290 ITR 622=(2005) 199 CTR 239=147 Taxman 599(Guj)
(3) Tribunal directing Assessing Officer to apply relevant High Court
decision – Order valid.
Industrial Machinery Manufacturing P. Ltd., CIT v/s.
(2006) 282 ITR 595 = 282 ITR 595= 193 Taxation 435 (Guj)
(4) Duty of Tribunal follow decision of jurisdictional High Court –
Failure to follow such decision – Order of Tribunal invalid.
New Sorathia Engineering Co. v/s. CIT
(2006) 282 ITR 642 = 202 CTR 188= 155 Taxman 513=193
Taxation 422 (Guj)
(5) Duty of Tribunal – Reasoned order – CIT(A) restricted the
disallowance in respect of discount and rebate allowed by
assessee to various parties – Tribunal reversed the order of the
CIT(A) without recording any reason as to why the basis on
which the CIT(A) accepted the explanation of the assessee
was not correct – Once the Tribunal was inclined to reverse
the order of CIT(A), it was necessary for it to record,
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howsoever briefly, the reasons for [the same – Impugned
order of the Tribunal is quashed and set aside and the appeals
are restored to the Tribunal for fresh adjudication.
Vipul Fashions (P) Ltd. v/s. Asst. CIT
(2006) 202 CTR 299 = 284 ITR 332 (Guj)
(6) Powers of Tribunal – Modifying the order of CIT under s. 263 – CIT
had initiated action under s. 263 on the basis that the AO had
not verified the claim for deduction of additional commission
and directed the AO to disallow the claim – In appeal, Tribunal
modified the order passed under s. 263 with a direction to the
AO to make further inquiries and then decide whether the
claim of additional commission is allowable or not – Same
permissible.
Harsiddh Specific Family Trust v/s. CIT
(2006)202 CTR 390 = 193 Taxation 361 = 284 ITR 105=
(2007)163 Taxman 603 (Guj)
(7) Powers of Tribunal – Revision ‐ Tribunal has power to modify order
passed on revision – Commissioner directing Assessing Officer to
disallow additional commission ‐ Tribunal modifying order and
directing Assessing Officer to investigate claim for deduction of
additional commission – Order valid –
Hindustan Lever Ltd. v/s. Joint CIT
(2006)284 ITR 105(Guj)
(8) Tribunal to record reasons where reversing order of Commissioner
(Appeals) – Survey – Admission by director of unaccounted purchases
– Commissioner (Appeals) accepting retraction coupled with
evidence ‐ Tribunal restoring additions without discussion of
evidence with reasons why retraction coupled with evidence not
acceptable – Not proper – Matter remanded .
Nirman Textile Mills P. Ltd. v/s. Asst. CIT
(2006) 284 ITR 325= 204 CTR 423 = 155 Taxman 502 =
195 Taxation 302(Guj)
(9) Duty of the Tribunal ‐ Reasoned order – It is necessary for the order
of the Tribunal to reflect that the Tribunal was aware of the
controversy that it was called upon to decide and application of
mind by the Tribunal to the said controversy – Tribunal confirmed
the rejection of books of account of the assessee as well as the
addition made by the AO without recording as to what were the
issues which arose for consideration and the reasons for rejecting
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the contentions raised on behalf of the appellant ‐ Accordingly, the
impugned order is quashed and set aside and the appeal is restored
to the Tribunal for being decided afresh.
Dagina v/s. Dy. CIT
(2005)199CTR 239=147 Taxman 599 =(2007) 290 ITR 622 (Guj)
(10) Additional ground – Waiver of ground of appeal before CIT(A) –
Assessee had challenged the reassessment before the CIT(A)
on the ground that the original return was pending on the
date of issuance of notice under s. 148 – However, assessee
did not press the aforesaid point after the assessing authority
clarified that the assessment under s. 143(1) had been
completed earlier – Challenging to reassessment proceedings
before the Tribunal was on entirely different grounds and
had nothing to do with pendency of the original return
Therefore, Tribunal was wrong in holding that the assessee
had waived its right to challenge reassessment proceedings
before the CIT(A) and was not entitled to raise such ground
before the Tribunal.
Ramilaben Ratilal Shah v/s. CIT
(2005)199 CTR 340= 282 ITR 176= (2006) 152 Taxman 192= 192
Taxation 351 (Guj)
(11) Appeal to Commissioner (appeals) – Commissioner (appeals)
setting aside assessment on preliminary ground – Tribunal
Overruling Commissioner (appeals) – Matter to be restored to
Commissioner (appeals) – Tribunal cannot consider appeal on
merits.
Sheth Construction Co. v/s. ITO
(2005)274 ITR 304 =195 CTR 398 = 148 Taxman 271(Guj)
(12) In view of section 253, in case a party having succeeded
before Commissioner (Appeals) opts not to file cross
objection even when an appeal has been preferred by other
party, from that it cannot be inferred that said party has
accepted order or part thereof which was against it.
Dahod Sahakari Kharid Vechan Sangh Ltd. V/s. CIT
(2005) 149 Taxman 456 (Guj)
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(13) Disposal of appeal without considering application under r. 29 of
ITAT Rules – Tribunal was required to dispose of the application
under r. 29 for adducing evidence before hearing the appeal on
merits – High Court not justified in holding that s. 254(2) was not
attracted ‐ Order of the Tribunal set aside and matter remitted to
Tribunal to dispose of the application under r. 29 on merits and
thereafter to proceed to dispose of the appeal on merits.
Jyotsna Suri v/s. ITAT & Ors.
(2003) 179 CTR 265 = 128 Taxman 33(SC)
(14) Duty of Tribunal to consider all facts and give reasons for its
decision – Tribunal giving finding contrary to decision of CIT
(Appeals) without giving reasons ‐ Matter remanded.
Ramesh Chandra M. Luthra v/s. Asstt. CIT
(2002)257 ITR 460 = 176 CTR 39 = 169 Taxation 662 (Guj)
(15) Powers of Tribunal ‐ Power to remand ‐ Cash Credits ‐ CIT(A)
considering evidence and holding that assessee proved
genuineness of transaction ‐ Tribunal not justified restoring
matter to Assessing Officer ‐ Income Tax Act, 1961, s. 254.
Rajesh Babubhai Damania v/s. ITO
(2001) 251 ITR 541 = 169 CTR 346(Guj)
(16) Search and Seizure ‐ Documents seized from residence of director of
company ‐ Tribunal finding that there had been no enquiry
regarding documents ‐ Tribunal not justified in holding that
income disclosed in documents belonged to director ‐ Matter
remanded ‐ Income Tax Act, 1961, s. 132.
Mansukhlal Nanjibhai Patel v/s. Deputy CIT
(2001) 251 ITR 341(Guj)
(17) Application of Income or Diversion at Source ‐Clubbing of income –
Partition of HUF’s share in a firm vis‐à‐vis sub ‐ partnership – In
terms of partition deed, right of the assessee (karta) to receive 50
per cent share from the firm was subject to 1/2 of it being given to
his wife who had a prior charge over the share income firm – This
is a case of diversion of the profit at source – Partnership is not to be
inferred ‐ No sub partnership was formed between the assessee
and his wife ‐ Share of wife could not be included in the income of
the assessee.
Natvarlal V. Desai, CIT v/s.
(2002) 177 CTR 476 = 124 Taxman 39 (Guj)
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(18) Assignment of right, title and interest in firm – When a third person
becomes entitled to receive an amount under an obligation of the
assessee even before he could lay a claim to receive it as his income,
there would be diversion of income by overriding title – However,
when after receipt of income by the assessee, the same is passed on
to a third person in discharging the obligation of the assessee, it is a
case of application of income and not of diversion of income by
overriding title – Assessee partner having ten per cent share in
partnership, assigned fifty per cent of his share in right, title and
interest (excluding capital) in the firm in favour of a trust created by
him – This is not a case of diversion by overriding title – It cannot be
treated as a case of sub‐partnership, though in view of s. 29(1) of the
Indian Partnership Act, the trust, as an assignee is entitled to receive
the assigned share in the profits of the firm – Consequently, the
share of income of the assessee assigned in favour of the trust has to
be included in the total income of the assessee.
Sunil J. Kinariwala, CIT v/s.
(2003)179 CTR 15=259 ITR 10=126 Taxman 161=172 Taxation 389
(SC)
(19) Diversion by overriding title ‐ Compulsory deductions at instance of
Government towards funds – Society collecting from members and
paying over to funds – Deductions not income of society.
Siddheshwar Sahakari Sakhar Karkhana Ltd. V/s. CIT
Shri Chatrapati Sahakari Shakar Karkhana Ltd., CIT v/s.
(2004)270 ITR 1 =139 Taxman 434 = 191 CTR 66 = 183 Taxation 477
(SC)
(20) Cross objections having been filed after a delay of one of one
year and eleven months and assessee having failed to show
any cause on merits in any manner whatsoever, as to how s.
41(1) is applicable, Tribunal was justified in refusing to condone
the delay.
Vareli Textile Industries v/s. CIT
(2006)201 CTR 403 = 284 ITR 238= 154 Taxman 33 =
193 Taxation 448(Guj)
Also See “Tribunal”.
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15. ASSESSMENT
(a) ADDITION TO INCOME
(1) Assessment year 1989‐90 – Assessee company had written off an
amount on account of obsolete items which were not moving for
last three years – Assessee valued closing stock of obsolete items at
10 per cent of cost – Assessing Officer, however holding that
assessee failed to furnish list of obsolete items, added back certain
amount by taking realizable value of obsolete items at 50 per cent
of cost – Tribunal also confirmed view taken by Assessing Officer ‐ It
was found from records that assessee had placed auditor’s items
at 10 per cent of cost – Such obsolete items were in fact sold in
subsequent year at a price less than 10 per cent of cost ‐ Moreover
Assessing officer had also not doubted correctness of auditor’s
report nor concluded that assessee failed to furnish list of obsolete
items or had made valuation arbitrarily and therefore addition made
by Assessing Officer was without any basis and was liable to be set
aside ‐ On facts order of High Court was to be upheld.
Alfa Laval (India) Ltd., CIT v/s.
(2008)170 Taxman 615(SC)
(2) Assessment year 1989‐90 – Whether a statement recorded under
section 132(4) at midnight can be considered to be a voluntary
statement if it is subsequently retracted assessee and necessary
evidence is led contrary to such admission – Held, no – During search
conducted at assessee’s premises his statement was recorded under
section 132(4) wherein he disclosed certain undisclosed income –
After two months, he retracted from said disclosure contending that
it was made at midnight under pressure and coercion – He also
gave proper evidence in support of his retraction – Assessing Officer,
however made addition on basis of disclosure made by assessee in
statement recorded under section 132(4) – Whether merely on basis
of admission assessee could be subjected to such addition when
despite retraction revenue could not furnish any corroborative
evidence in support of such admission – Held no.
Kailashben Manharlal Chokshi v/s. CIT
(2008) 174 Taxman 466 = 220 CTR 138 = 14 DTR 257(Guj)
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(3) Business transactions – Additions on the basis of entries in
diary – Assessee claiming it as personal transaction ‐ Additions
to income deleted by Tribunal – Justified – Income‐tax Act,
1961.
Gujarat Distributors, CIT v/s.
(2007) 199 Taxation 508(Guj)
(b) NOTICE u/s. 143(2)
Notice under s.143(2) ‐ Limitation – Admittedly notice under s.
143(2) was issued beyond the statutory period of limitation
prescribed under proviso to s. 142(2) i.e one year from the end
of the month of filing of return ‐ CIT(A) and the Tribunal were
correct in holding that the assessment was void ab initio.
Mahi Valley Hotels & Resorts, Dy. CIT v/s.
(2006) 201 CTR 308 = 193 Taxation 418(Guj)
(c) DISALLOWANCE u/s. 43b
Disallowance under s. 43B – Question whether interest on unpaid
sales tax is a part of tax and the provisions of s. 43B would be
applicable to the unpaid amount is not a debatable one and,
therefore, provisions of s. 143(1)(a) were rightly invoked for
disallowing the unpaid interest by way of prima facie adjustment.
Shree Digvijay Cement Co. Ltd. v/s. CIT
(2006) 206 CTR 1(Guj)
(d) SPECIAL AUDIT
(1) Opportunity of being heard – Question as to whether the
assessee was to be given an opportunity of being heard before
issuance of direction for special audit under s. 142(2A) being
covered by the decision in Rajesh Kumar & Ors. Vs. Dy. CIT &
Ors (2006) 206 CTR(SC) 175: 2007 (2) SCC 181, impugned
judgment of the High Court is set aside and the matter is
remitted to the High Court for consideration of the writ petition
afresh on merits.
Delhi Development Authority & Anr. V/s. Union of India & Ors.
(2008) 214 CTR 106 (SC)
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(2) Assessment ‐ Special audit ‐ Nature of – Direction for special audit
– Not administrative – Is of quasi‐judicial nature – Notice to
assessee to be given ‐
Rajesh Kumar v/s. Deputy CIT
(2006) 287 ITR 91= 206 CTR 175= 157 Taxman 168 (SC)
(3) Special Audit ‐ s. 142(2A) ‐ Enquiry – Special audit – Voluminous
details to answer questions raised by assessing authority –
Assessing authority directing special audit of accounts to be
carried out ‐On basis of nature and complexity of accounts –
Valid.
Living Media Ltd. v/s. CIT
(2002) 255 ITR 268 = 124 Taxman 75 = 175 CTR 299 =
170 Taxation 86(SC)
(e) SCOPE ON REMAND
New source of income or new addition ‐ AO while reframing
assessment in set aside proceedings could not have added
an item which was not subject matter of original
assessment ‐ This is so because there was no occasion for
the CIT(A) to issue any direction in respect of a matter not
in appeal before him – Further, the AO is not competent
to make addition in respect of income which has been
declared under VDIS, 1997 accepted by CIT and certificate
issued and tax paid by the assessee, so long as the
certificate holds the field – That apart, AO could not have
referred to the provisions of s. 158BD in the absence of
statutory conditions being satisfied.
Nitin P. Shah alias Modi v/s. Dy. CIT
(2005)194 CTR 306 =276 ITR 411= 146 Taxman 536 = 187
Taxation 390 (Guj)
(f) PRIMA FACIE ADJUSTMENT
Intimation of basis of return – Additional tax – Contention
not dealt with – matter remanded.
Bhuna Co‐op. Sugar Mills Ltd. V/s. CIT
(2005)273 ITR 212 =194 CTR 1 = 143 Taxman 369=
187 Taxation 182(SC)
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(g) DRAFT ASSESSMENT ORDER ‐ LIMITATION
(1) Extended period of limitation where draft assessment
order is forwarded to inspecting Assistant Commissioner –
Inspecting Assistant Commissioner exercising jurisdiction to
assess by virtue of order conferring powers of Assessing
Officer on him – Extended period of limitation not
available ‐ Income Tax Act, 1961, ss. 125A, 144B, 153.
Saurashtra Cement and Chemical Industries Ltd., CIT v/s.
(2005) 274 ITR 327 = 195 CTR 33= 187 Taxation 599(Guj)
(2) Draft Assessment ‐ Directions u/s. 144A – Valid ‐ Assessment ‐
Directions under s. 144A ‐ Pendency of reference under s.
144B(4) ‐ Assessment is not complete where a draft
assessment is framed by the ITO, until he completes the draft
assessment by passing an effective order under sub‐s (3) of s.
144B in accordance with the directives issued by IAC ‐ Power
under s. 144A to issue directions for the guidance of the ITO
exists throughout the period during which assessment is
pending ‐ A proceeding is in pendency from the date of its
institution till its conclusion before the concerned authority ‐
Jurisdiction under s. 144A relates to area not covered by draft
assessment order under s. 144B and extends to issuing direction
for holding inquiry ‐ Therefore, IAC can issue directions under s.
144A during pendency of a reference before him under s. 144B(4).
Kashiram Textile Mills (P) Ltd. , CIT v/s.
(2001) 170 CTR 11 = 252 ITR 162(GUJ)
(3) Levy of penal interest and show‐cause notice for penalty not
mentioned in draft order s. 144B ‐ In the draft order, the AO did
not propose to charge interest under the provisions of ss. 139(8)
and 217(1A) and did not make any reference to initiation of
penalty proceedings under ss. 271(1)(a) and 273(2)(a) ‐ However,
AO charged interest and gave a direction to issue show‐cause
notice for imposition of penalties in the final assessment order ‐
Same not valid ‐ Object of s. 144B is to ensure that the
assessee gets an opportunity to represent his case as regards the
changes which might be made by the AO in the returned income
or loss, which would not only result in the reduction in litigation
but would also obviate undue hardship to the assessee ‐ Said
purpose stood defeated by the procedure adopted by the AO ‐
Apart from that, draft order was varied by AO without the
directions of IAC under s. 144B(4) ‐ Same not permissible ‐
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Moreover, once the draft order did not mention anything
regarding levy of interest, assessee could presume that the AO
had exercised his discretion to waive interest ‐ Such exercise of
discretion could not be changed after the draft order was
approved ‐ Therefore, it was not open to the AO to charge
interest or give a direction to issue a show‐cause notice for
imposition penalty proceedings in the final assessment order.
Maharaja Exhibitors, CIT v/s.
(2001)170 CTR 107 = 251 ITR 767(GUJ)
(h) GENERAL
(1) General principles ‐ Liability does not depend on assessment
being made – Liability to pay arises as soon as Finance Act
prescribes rates for assessment year – Income Tax Act, 1961,
Shelly Products, CIT v/s.
(2003) 261 ITR 367 = 129 Taxman 271 =181 CTR 564 = 175
Taxation 434 (SC)
(2) Regular assessment initiated by issuing notice under section
143(2) – Summary assessment by intimation cannot be made
thereafter.
Gujarat Electricity Board, CIT v/s.
(2003) 260 ITR 84 = 129 Taxman 65 = 260 ITR 84(SC)
(3) Assessing Officer included in his final order two items which he
had not mentioned in draft order submitted to IAC – First was
interest levied on assessee and second issuance of show cause
notice for penalty ‐ Whether it was open to Assessing Officer to
make change in draft order in nature of levy of interest or
issuance of a show cause notice for imposition of penalty after
draft order was approved by LAC – Held, no.
Maharaja Exhibitors , CIT v/s.
(2002) 125 Taxman 278 (Guj)
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(4) Additions – Excess shortage/wastage claimed by assessee –
Commissioner(Appeals) deleting additions giving detailed
reasons ‐ Tribunal sustaining addition partly ‐ Tribunal brushing
aside reasons given by CIT (Appeals) without verifying them –
Matter remanded to Tribunal for reconsideration.
Mercury Metals (P) Ltd. v/s. Asstt. CIT
(2002) 257 ITR 297 = 122 Taxman 737 = 175 CTR 520 =
169 Taxation 665 (Guj)
16. BAD DEBT
(1) Conditions precedent – Debts due to assessee cannot be said to
have become bad in the relevant year where the debtors had
not paid the amount due to some differences and the assessee
was insisting on payment and, therefore, claim for deduction of
bad debts was not allowable.
Dhall Enterprises & Engineers (P) Ltd., CIT v/s.
(2007) 207 CTR 729 = 198 Taxation 181= 162 Taxman 114
= 295 ITR 481 (Guj)
(2) Assessment year 1978‐79 – In view of decision of Supreme Court in
UCO Bank v/s. CIT (1999) 237 ITR 889/104 Taxman 547 and CBDT
circular dated 6‐10‐1952 for assessment year 1978‐79 assessee
would not liable to be taxed in respect of interest on doubted
advances credited to interest suspense account.
Mercantile Bank Ltd. v/s. CIT
(2006)153 Taxman 97= 202 CTR 457=283 ITR 84 =
193 Taxation 563 (SC)
(3) Absence of legal action vis‐a‐vis debtors declared as sick mills –
Whether or not a debt is bad is a question to be determined
objectively – Debt can be said to be bad if on a bona fide assessment,
it appears that the debtor is unlikely to make payment of the debt –
It cannot be inferred in such case that the debt is not bad merely
because legal steps for recovery are not taken ‐ There is no
requirement that legal action should be taken before a decision is
made that a debt is bad ‐ However, to support a claim for deduction
of a bad debt, there should be sufficient evidence to show that
reasonable steps based on sound commercial considerations were
taken to recover the debt – Further, the bad debt must also be
actually written off – Crucial time at which the bad debt becomes
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deductible is the time of writing off – Debts in question related to
textile mills which had fallen sick and were unable to discharge their
liabilities ‐ These mills were taken over under the provisions of
Gujarat Closed Textile Undertaking (Nationalisation) Act, 1986 –
Assessee, an electricity company, had taken coercive measure for
recovery by disconnecting the supply of electricity to these mills –
Assets of the mills vested in the State Government free from all
encumbrances and, therefore there were no assets from which
assessee could have effected recovery hence further legal remedies
were not attempted ‐ Claim for bad debts allowable on the facts of
the case.
Ahmedabad Electricity Co. Ltd., CIT v/s.
(2003)181 CTR 222=129 Taxman 190 = 262 ITR 97= 175 Taxation
704 (Guj)
17. BALANCING CHARGE
(1) Sale of undertaking by holding company to its wholly owned
subsidiary ‐ No reference in agreement of sale to value of
building, machinery and plant – Evidence that sale price of
building, machinery and plant was in excess of their written down
value ‐ Excess assessable under section 41(2) ‐ Order of remand
by AAC to ascertain value valid ‐
Shahibaug Entreprenuers (P) Ltd. , CIT
(2001)251 ITR 433 = 168 CTR 621 = 165 Taxation 300 = 122 Taxman
266(Guj)
(2) Sale of business as a going concern ‐ For the purpose of invoking s.
41(2), the AO must have with him the actual cost, WDV and sale
consideration for each asset which is sold – In the absence of the
same, s. 41(2) cannot be applied ‐ Where the entire business is sold
as a going concern with all assets and liabilities, the provision
cannot be invoked unless and until the aforesaid information is
available with the assessing authority ‐ Both CIT(A) and the Tribunal
concurrently found after appreciating the evidence on record that
the transaction in question was a slump sale i.e the entire business
undertaking of the assessee firm was sold as a going concern and
there was no itemized sale – Provisions of s. 41(2) not attracted.
Garden Silk Weaving Factory, CIT v/s.
(2005)199 CTR 13 = 279 ITR 136 (Guj)
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18. BENAMI
A non‐resident remitting certain amount to a person in India to buy
certain property for him – The person in India buying property in his
own name and in the names of his brothers – Petitioner filing suit
for recovery of property – In the meantime, Benami Transactions
(Prohibition) Act, 1988 promulgated – Court holding Act did not
come in conflict with and the suit was maintainable – High Court
holding against the appellant ‐ Suit for possession decreed along
with costs – Appeal of the respondent dismissed by High Court ‐
Court holding property was held in a trust – Held, Benami
Transactions (Prohibition) Ordinance or Act could not be taken in
aid even otherwise in a suit against the assessee for recovery of
the trust property.
Gangacharan (C) v/s. Narayanan (C)
(2002) 171 Taxation 192 = 123 Taxman 392(SC)
19. BEST JUDGMENT ASSESSMENT
Assessee filing a ‘nil’ return – Assessing Officer asking details of
shareholdings and details of unsecured loans – In spite of notice
under section 142(1), none appeared ‐ Assessing Officer proceeding
to make assessment under section 144 – Both CIT (Appeals) and
Tribunal confirming Assessing Officer’s order – Assessee pleading
that before completing assessment, a further opportunity should
have been given ‐ Held, order of the Tribunal not in consonance
with the judgment of the Apex Court in the case of CIT v/s. Smt. P.K
Noorjahan (1999) 237 ITR 570 – Matter remanded to Tribunal for
making fresh assessment.
Mitesh Rolling Mills (P) Ltd. v/s CIT
(2003) 173 Taxation 330(Guj)
20. BOI or AOP
Three individuals jointly received a sum from a donor under a
declaration – Same invested and interest income returned in
the status of BOI – Assessee assessable in the status of BOI
and not AOP – Tribunal justified in setting aside the order of
CIT under s. 263.
Shah, S.C & Ors., CIT v/s.
(2005) 193 CTR 226 = 185 Taxation 335= 274 ITR 217 (Guj)
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21. BUSINESS
(1) Trader or commission agent ‐ Out of ten parties five giving evidence
that assessee was only commission agent – Other five outside the
State not appearing to give evidence as could not be served with
summons – No adverse inference can be drawn against assessee –
Appellate Tribunal drawing– Inference against assessee – Not valid –
Income tax Act, 1961, s. 131(1).
Anis Ahmad and Sons v/s. CIT (Appeals)
(2008)297 ITR 441=214 CTR 457 =167 Taxman 84 =
204 Taxation 37(SC)
(2) Profit Motive ‐ Sales Tax Act ‐Publication of books, literature etc. by
trust ‐ Trust for spreading message of Saibaba of Shirdi among
devotees – Books, pamphlets and other literature containing
message of Saibaba under the aegis of “Sai publication”
distributed by the trust to the devotees of Saibaba at cost price –
The activity of the trust in bringing out publications and selling
them at cost price to spread message of Saibaba does not make it a
dealer under s. 2(11) – The question of profit motive or no profit
motive would be relevant only where person carries on trade,
commerce, manufacture or adventure in the nature of trade,
commerce etc. – Trust not a ‘dealer’ within the meaning of s. 2(11)
of the Bombay ST Act , 1959 ‐ Tax is leviable on the sales or
purchases of taxable goods by a ‘dealer’ and not by every person.
Sai Publication Fund, CST v/s.
(2002) 177 CTR 1 = 122 Taxman 437 = 258 ITR 70 (SC)
22. BUSINESS EXPENDITURE
(a) ACCRUAL OF LIABILITY
(1) General Principles – Mercantile system of accounting ‐ Assessee
occupying premises of another firm – Provision for liability for
use of premises – Agreement regarding quantum of liability not
finalized – Liability was not contingent – Provision was
deductible.
Amrish & Co. v/s. CIT
(2002) 257 ITR 180 = 173 CTR 27 = 121 Taxman 604 (Guj)
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(2) Year of allowability – Disputed liability ‐ Assessee following
mercantile system of accounting ‐ Liability can be said to be
properly incurred when the dispute between the parties is
amicably settled or finally adjudicated – Liability pending
adjudication by way of appeal in the Supreme Court – Till the
same is finally adjudicated, it would remain a contingent liability
– Same not allowable as deduction ‐ Same logic applies in
relation to interest payable on the arrears of unpaid liability.
Alembic Chemical Works Ltd. v/s. Dy. CIT
(2003) 185 CTR 389 = 133 Taxman 833(Guj)
(3) Additional price payable towards purchase of milk ‐
Assessee, an apex co‐operative society of various milk
producers’ co‐operative societies, issued circulars to the
member societies from time to time notifying the
adhoc/provisional price of milk and stating that the final
price would be decided and intimated at the end of the year
– Said circulars created an obligation to fix the final price –
Purchase price revised upwards on the last day – Payment
of additional/final price fixed on the last day of the
accounting year is allowable as deduction s. 28 or
alternatively under s. 37(1).
Mehsana District Co–operative Milk Producers Union Ltd.,
CIT v/s.
(2005)195 CTR 385 = 146 Taxman 355 = 189 Taxation 625
(Guj)
(4) Allowability ‐ Disputed liability towards damages ‐ Assessee
did not supply part of contracted goods to APO as per the
tender – APO intimated the loss incurred by it on account
of cancellation of contract and called upon the assessee to
make payment of specified loss – Dispute between the
parties pending adjudication before the sole arbitrator – It
is a contractual liability and has not been discharged
during the year under consideration – Therefore, said
liability was not allowable as deduction in the relevant year.
Ashwin Vanaspati Industrial (P) Ltd., CIT v/s.
(2005)196 CTR 117 = 189 Taxation 612(Guj)
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(5) Year of allowability – Liability to return excess amount realized on
sale of levy sugar – Assessee challenged the fixation of price of
levy sugar and was permitted to sell levy sugar at a price in excess
of price fixed under the Control Order – Later, it withdrew the
petitions on 12th March, 1973 – Meanwhile the Levy Sugar Price
Equalisation Fund Act, 1976 came into existence and under the
provisions of the Equalisation Fund Act, the excess price
recovered by sugar factories was required to be paid into the
Equalisation Fund – Subsequently, on civil applications filed by
the Union of India, the High Court vide its order dt. 2nd May, 1980
directed the assessee to credit the difference between the
controlled price and the price recovered as well as interest on all
excess realizations to levy Sugar Price Equalisation Fund –
Assessee challenged the same but the Supreme Court rejected
the principal contention of the assessee viz, liability to return the
excess amount ‐ Assessee claiming deduction thereof either in
asst. yr. 1981‐82 on the basis of the judgment of the High Court
or alternatively in asst. yr. 1982‐83 based on the order of the
apex court – Claim not acceptable in either of the year – Liability
to return the excess amount had arisen on 12th March, 1973,
when the assessee withdrew the petitions and the interim order
passed therein became non existent and inoperative, and not
on the day the High Court passed the order nor on the day when
the Supreme Court dismissed the assessee’s challenging to the
aforesaid order ‐ Even otherwise, the assessee had become liable
to return the amount by virtue of the provisions of s. 3(3) of
Equalisation Fund Act in 1976 – Therefore, assessee was not
entitled to claim deduction in the relevant assessment years
despite having discharged the liability on the basis of the orders
of the High Court and the Supreme Court.
Bileshwar Khand Udyog Sahakari Mandali Ltd. v/s. CIT
(2006)200 CTR 464(Guj)
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(6) Year of allowability – Provision for interest payable to Sales Tax
Department – Assessee was originally granted refund of sales tax
but later demand was raised along with interest on the ground
the refund was wrongly allowed – Interest was payable in
instalments as per a settlement and accordingly assessee made
provision therefore – Assessee is not disputing its liability by
raising frivolous defence nor it is a case where the refund was
obtained fraudulently – Tribunal justified in allowing deduction
of provision in the relevant years.
Bileshwar Khand Udyog Sahakari Mandali Ltd. v/s. CIT
(2006)200 CTR 464(Guj)
(7) Allowability – Disputed luxury tax liability – Tribunal held that
despite the pendency of the litigation challenging the validity of
the statute imposing the luxury tax, the amounts collected by the
assessee from customers represented trading receipts of the
assessee – Consequently the corresponding liability placed upon
the assessee by the statute accrued on the date of the
transaction, i.e when the customer was billed and the amount
was recovered – Stay granted by the apex Court against
operation of the statute was conditional inasmuch as the
assessee was called upon to file an undertaking that in the event
of the assessee succeeding before the apex Court the amount
recovered by the assessee would be returned to the customers
– Therefore, in any event, there was an accrued liability in so far
as assessee was concerned – Tribunal justified in allowing
deduction of statutory liability of luxury tax.
Express Hotel (P) Ltd., CIT v/s.
(2006)200 CTR 476(Guj)
(8) Payment of bonus – Assessee has been consistently paying
bonus for each year after the end of the respective
accounting year and claiming deduction thereof in the year
of payment – In the relevant year assessee changed the
system of accounting from cash basis to mercantile and
accordingly claimed deduction of provision for bonus as well
as payment of bonus relatable to the earlier year made in
the year under consideration – This double deduction was a
necessary concomitant in the year of system of accounting
– Payment could not be said to be relatable to earlier year ‐
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Tribunal was justified in allowing deduction of bonus
actually paid during the accounting year.
Standard Radiators (P) Ltd. , CIT v/s.
(2006) 201 CTR 517 = 152 Taxman 210 =
193 Taxation 108 =286 ITR 207 (Guj)
(9) Assessment year 1981‐82 – Assessee company was engaged in
business of manufacturing and selling chemicals and
pharmaceuticals – Assessee in course of business manufactured
antibiotics on bulk basis – Government of India under Drug Price
Control Order (DPCO) called upon assessee to pay a sum of Rs.
1,34,65,048 into Drug Price Equalisation Account (DPEA) which
was difference between pooled price and retention price on
quantity of bulk drug manufactured and sold by him – Assessee
claimed deduction of total demand of Rs. 1,3465,048 from
income – In meanwhile, assessee filed a writ application, against
said demand which was quashed by High Court – Since High
Court had quashed demand of Rs. 1,34,65,048 on account of
which assessee was not required to make said deposit with
Union of India, assessee could not be entitled to claim deduction
on said amount – Held, yes –
Synbiotics Ltd. v/s. CIT
(2006)156 Taxman 344 = 206 CTR 17(Guj)
(b) ADDITIONAL PRICE
Co‐operative society – Additional price of milk paid to member
societies – Deductible – Income Tax Act, 1961, s. 37.
Mehsana Dist. Co‐op. Milk Producers’ Union Ltd. CIT v/s.
(2008) 307 ITR 83 = 205 Taxation 278 = 2 DTR 280=4 DTR 222 =
(2009) 176 Taxman 416 = 309 ITR 100(Guj)
(c) ADVERTISEMENT EXPENDITURE
(1) Disallowance under s. 37(3A) – Only the net amount of
expenditure on advertisement and sales promotion i.e gross
expenditure less amount recovered by assessee from its
dealers could be considered for disallowance under s. 37(3A).
Vadilal Industries Ltd., CIT v/s.
(2008) 217 CTR 318 = 6 DTR 98(Guj)
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(2) Supply of danglers, posters, steramers, tin plates to dealers to
Exhibit assessee's products ‐ Part of publicity expenditure ‐
Disallowance of expenditure under section 37(3A) ‐ Justified .
Innosearch Ltd. v/s. CIT
(2001) 251 ITR 384 = 114 TAXMAN 455 =
160 TAXATION 642(Guj)
(d) AMORTISATION s. 35D
(1) Amortisation of preliminary expenses – Bridge loans from specified
institutions – Long term loans – included in computing capital for
purpose of section 35D – Income Tax Act, 1961, s. 35D.
Core Healthcare Ltd., CIT (Deputy) v/s
(2009) 308 ITR 263 = 221 CTR 580(Guj)
(2) Debenture issue expenses – Debenture issue expenses having been
held by the Tribunal to have been incurred for purposes of working
capital in the course of modernization of the existing plant and
machinery and there being no dispute on that count, there is no
question of invoking the provisions of s. 35D.
Office of the official Liquidator, CIT v/s.
(2008) 218 CTR 165 = 205 Taxation 241 = 3 DTR 165 (Guj)
(e) BONUS
Production bonus – Finding that payment was for increased
production and was part of regular wages – Payment deductible .
P.M Diesel P. Ltd. , CIT v/s.
(2006)284 ITR 146 = 193 Taxation 119 = 204 CTR 328 (Guj)
(f) BANK GUARANTEE COMMISSION
(1) Capital or revenue expenditure ‐ Was revenue expenditure –
Mihir Textile Ltd. v/s. CIT
(2001) 170 CTR 606 = 252 ITR 686(GUJ)
(2) Guarantee commission given to Bank – Is revenue expenditure.
Mihir Textiles Ltd. , CIT v/s.
(2002) 256 ITR 528=172 CTR 344 = 166 Taxation 713 =
121 Taxman 60(Guj)
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(g) CAPITAL OR REVENUE
(1) General principles – Scope of doctrine of enduring benefit –
Advertisement expenses to create brand image – Revenue
expenditure – Income Tax Act, 1961, s. 37.
Core Healthcare Ltd., CIT (Deputy) v/s
(2009) 308 ITR 263 = 221 CTR 580(Guj)
(2) Expenditure on construction of drainage for disposal of effluents ‐
High Court having not examined the terms and conditions on
which the Forest Department had permitted the assessee to
construct drainage for disposal of effluents in deciding the
question as to whether the expenditure incurred by the assessee
is revenue or capital expenditure, impugned order is set aside
and the matter is remitted to the High Court for fresh
consideration in accordance with law.
Shreyans Industries Ltd. v/s. CIT
(2008) 219 CTR 320 = 175 Taxman 239 = 13 DTR 225(SC)
(3) Guarantee commission is allowable as revenue expenditure.
Elscope (P) Ltd., CIT V/s.
(2008) 215 CTR 16 = 206 Taxation 327 = 2 DTR 329, 342(Guj)
(4) Payment for acquiring leasehold right for extracting
minerals – Proportionate lease rent paid by the mining
lessee for acquiring leasehold right for extracting minerals
from mineral bearing land is a capital expenditure.
Enterprising Enterprises v/s. Dy. CIT
(2007) 208 CTR 433 = 160 Taxman 188 = 293 ITR 437 (SC)
(5) Replacement of assets without increase in production
capacity ‐ Amounts to revenue expenditure – Absence of
details – Old machine, replaced by new machine – Whether
constitutes advantage of an enduring nature – Supreme
Court – Matters remanded to Commissioner (Appeals) –
Income Tax Act, 1961, s. 37.
Ramaraju Surgical Cotton Mills , CIT v/s.
(2007) 294 ITR 328 = 212 CTR 345 (SC)
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(6) Share issue expenses ‐ Expenditure on issue of new shares,
fee paid to RoC for increasing the shares capital and
prospectus report fee for new issue of shares is capital
expenditure.
Vareli Textile Industries v/s. CIT
(2006)201 CTR 403=284 ITR 238=154 Taxman 33 =
193 Taxation 448(Guj)
(7) Expenditure in connection with amalgamation ‐
Amalgamation and liquidation expenses of winding up
company constitutes revenue expenditure.
Vareli Textile Industries v/s. CIT
(2006)201 CTR 403 =284 ITR 238 =154 Taxman 33 =
193 Taxation 448(Guj)
(8) Expenses for stamp duty ‐ Company ‐ Expenses by way of stamp
duty and registration for issue of bonus shares – Company does
not acquire any benefit or advantage of enduring nature –
Expenses are revenue in nature and allowable.
General Insurance Corporation , CIT v/s.
(2006)286 ITR 232 =156 Taxman 96= 205 CTR 280(SC)
(9) Expenditure on renovation of theatre, stamp duty, interest
payment, etc. Assessee firm carrying on business of
exhibiting cinema films was operating as a lessee in the
leased premises – It had merely incurred the said
expenditure to facilitate its trading operations in a more
efficient manner – Impugned expenditure would enable
the assessee to generate more revenue by attracting
greater flow of customers to the cinema hall without
bringing into existence any new asset or advantage of
enduring nature – Tribunal was justified in allowing the
expenditure as revenue expenditure.
Laxmi Talkies, v/s. CIT
(2005)194 CTR 334 =275 ITR 125 = 186 Taxation 637 (Guj)
(10) Amalgamation of sister concern with assessee company ‐
Legal and professional expenses ‐ Revenue expenditure.
Dinesh Mills Ltd. V/s. CIT
(2004) 268 ITR 502 (Guj)
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(11) Donation to certain funds, charitable institutions etc. – Assessee
company claimed 100 per cent deduction on account of donation
of Rs. 2.5 lakhs to Gujarat Cricket Club (GCC) on basis that
expenditure was in nature of staff welfare activity – Assessing
Officer held that benefit was of enduring nature and had resulted
in acquisition of capital asset by assessee company – Tribunal
held that contribution was not a capital nature but was a revenue
expenditure ‐ Whether expenditure could be considered as
capital in nature only when any capital asset had been created by
assessee by that expenditure –Assessee had no proprietary right
on seats which had been promised by association to be allotted
at time of event or game; therefore, capital nature of company
had not been increased by contribution to GCC and, therefore,
contribution could not be treated as capital expenditure.
Emtici Engg. Ltd., CIT v/s.
(2003) 128 Taxman 265 = 10 DTR 177(Guj)
(12) Since additional liability due to fluctuation in exchange rate was
clearly referable to liability of capital nature, amount claimed by
way of exchange loss, consequent to fluctuation in exchange rate,
was not allowable as deduction.
S. G Chemicals & Pharmaceuticals Ltd., CIT v/s
(2003) 130 Taxman 284 (Guj)
(13) Payments to retiring partners – Stipulations of the retirement
deed clearly show that the payments made to the outgoing
partners were in lieu of their foregoing the rights, title and
interest in the assets, the firm’s name and all other rights in the
firm – Therefore, the payment could not be treated as any
expenditure incurred by the firm wholly and exclusively for the
purposes of its business but was a capital payment by its very
nature.
Shree Laxmi Textiles & Allied Corpn, CIT v/s.
(2003) 183 CTR 44 =128 Taxman 176 = 174 Taxation 563 (Guj)
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(14) Expenditure in connection with obtaining loan ‐Expenses incurred
by way of payment of scrutiny fee, payment for preparation of
report and payment to solicitors and consultants for the
purposes of obtaining loan from GIIC had nexus with acquiring
loan and not with the acquisition of any asset – Therefore, these
items of expenditure could not be treated as capital expenditure.
Patel Filters Ltd. v/s. CIT
(2003)183 CTR 608 =132 Taxman 116 =176 Taxation 567 =264 ITR
21 (Guj)
(15) Foreign tour expenses – Foreign tours undertaken by the
managing director of the assessee company in connection with
projects which were to be set up by other companies –
Expenses are allowable as revenue expenditure.
Patel Filters Ltd. v/s. CIT
(2003) 183 CTR 608 =132 Taxman 116 =176 Taxation 567= 264
ITR 21(Guj)
(16) Expenditure incurred by company in connection with
amalgamation proceedings ‐ Is revenue expenditure.
Mihir Textiles Ltd. , CIT v/s.
(2002) 256 ITR 528=172 CTR 344 = 166 Taxation 713 =
121 Taxman 60(Guj)
(17) Agreement granting non‐exclusive licence to manufacture
electric motors – Royalty payable on the basis of a percentage
of sale price of products manufactured – Is allowable business
expenditure.
Jyoti Electric Motors Ltd., CIT v/s.
(2002) 255 ITR 345 = 173 CTR 20 = 167 Taxation 30 =
121 Taxman 519(Guj)
(18) Fees paid for technical report – For expansion of existing
business – Is allowable expenditure.
Jyoti Electric Motors Ltd., CIT v/s.
(2002) 255 ITR 345 = 173 CTR 20 = 167 Taxation 30 =121 Taxman
519(Guj)
(19) Loss on account of fluctuation in exchange rate – Not allowable
as revenue expenditure.
S.G Chemicals & Pharmaceuticals Ltd., CIT v/s.
(2002) 175 CTR 618 = 169 Taxation 679 = 258 ITR 109(Guj)
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(20) Replacement of machineries – Whether in the given facts and
circumstances of the case, replacement of parts of machinery
would amount to revenue expenditure or capital expenditure is
primarily a question of fact – Tribunal correctly applied the legal
principles in holding that part of the total expenditure incurred
on replacement of machineries was admissible as revenue
expenditure.
Sarangpur Cotton Mfg. Co. Ltd. , CIT V/s.
(2002) 177 CTR 467 = 124 Taxman 30 = 171 Taxation 499 (Guj)
(21) Expenses incurred on issue of bonus shares – Is capital
expenditure.
Bharat Vijay Mills Ltd. , CIT v/s.
(2002) 177 CTR 475 = 124 Taxman 60 = 171 Taxation 498(Guj)
(22) Expenditure due to exchange rate difference ‐ Was capital
expenditure.
Mihir Textile Ltd. v/s. CIT
(2001) 170 CTR 606 = 252 ITR 686(GUJ)
(23) Repairs to building ‐ It is only where the advantage is in the
capital field that the expenditure would be disallowable ‐ If the
advantage consists merely in facilitating the assessee's trading
operations or enabling the management and conduct of
assessee's business to be carried on more efficiently or more
profitably while leaving the fixed capital untouched the
expenditure would be on revenue account even though the
advantage may endure for an indefinite future ‐ As a result of
the repairs, the godown which was earlier used as a creche for
the children of the female workers employed in assessee's
factory, is now used as administrative office ‐ Thus, the
business asset has retained its character and only its use has
changed ‐ There is no addition to or expansion of the profit
making apparatus ‐ Expenditure incurred on repairs was
revenue expenditure held ‐
Indian Ginning & Pressing Co. Ltd. v/s. CIT
(2001)170 CTR 122(GUJ)
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(24) Expending on borewell ‐ Expenditure incurred towards cleaning
of the existing tubewell and altering the pipes of the pump
installed inside the well was revenue expenditure.
Indian Ginning & Pressing Co. Ltd. v/s. CIT
(2001)170 CTR 122(GUJ)
(25) Expenditure in connection with issue of bonus shares ‐ Was
capitalexpenditure ‐
Mihir Textile Ltd. v/s. CIT
(2001) 170 CTR 606 = 252 ITR 686(GUJ)
(26) Expenditure in connection with public issues of shares ‐ Object of
the assessee was to increase its share capital whether it did so to
comply with the directive of the RBI or otherwise ‐ Expenditure
was capital expenditure.
Kodak India Ltd. , CIT v/s.
(2001) 171 CTR 187(SC)
(h) CASH EXPENDITURE
(1) Disallowance payments made in cash exceeding prescribed limit –
Unaccounted business transactions – Business expediency and
exceptional and unavoidable circumstances not established – No
evidence to show that payment by crossed cheque or draft not
practicable having regard to nature of transaction and necessity for
expeditious settlement ‐ The payment by crossed cheque or draft
would have caused genuine difficulty to assessee having regard to
nature of transaction and necessity for expeditious settlement not
shown – Transactions not falling under rule 6DD(j) – Disallowance
justified ‐ Income tax Rules, 1962, r. 6DD(j) – Income Tax Act, 1961,
s. 40A(3).
Hynoup Food and Oil Ind. P. Ltd., CIT v/s.
(2007) 290 ITR 702(Guj)
(2) Disallowance under s. 40A(3) ‐ Payments through agent – Assessee
had engaged a firm which used to look after the financial affairs of
the assessee and used to collect and make payments on behalf of
the assessee – Payment was made by the said firm on the
instructions given by the assessee which was referred to as ‘pay
order’ ‐ Thus, the so called ‘pay order’ meant an instruction by the
assessee to the firm for making payment and not the payment ‐ By
virtue of the ‘pay order’, no amount was paid or no expenditure
had been incurred – All the final payments were made by the firm
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as an agent of the assessee by account payee cheques –
Transactions not hit by the provisions of s. 40A(3).
Mrinalini V. Sarabhai , CIT v/s.
(2003) 184 CTR 122 = 176 Taxation 553 = 132 Taxman 257(Guj)
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(4) Excise duty collected from customers and kept in a separate
account – Not deductible – Assessable as trading receipt –
Income Tax Act, 1961, ss. 28, 43B ‐
Ideal Sheet Metal Stampings & Pressing (P) Ltd., CIT v/s.
(2007)290 ITR 295 = 207 CTR 173= 197 Taxation 320 (Guj)
(5) Bottling of arrack,etc–Excise Commissioner’s condition that
arrack should be matured in wooden vats for at least 15 days –
Permission for not complying with maturing – Additional
amount paid per bottle for such permission – Amount paid
claimed as deduction ‐ Amount paid for not affixing label on
bottles – Not in nature of penalty or excise duty – Allowable as
deduction – Rule as to deduction in year in which amount paid
– Not applicable – Income Tax Act, 1961, ss. 37, 43B –Tax, duty
etc –Condition for allowance–Rule as to deduction in year in
which amount paid ‐
Distillers Co. Ltd., CIT v/s.
(2007) 290 ITR 419 = 160 Taxman 252= 209 CTR 177 (SC)
(6) Payment of royalty pertaining to earlier years – Sec. 43B is
fully applicable to the payment of royalty in asst. yr. 1985‐86
though pertaining to asst. yrs. 1981‐82 and 1982‐83 which was
finalised on 2 nd January, 1985, and therefore assessee is
entitled to deduction in asst. yr. 1985‐86.
Development Corporation, CIT v/s.
(2007) 207 CTR 548 (Guj)
(7) Disallowance under s. 43B – Sales Tax and municipal tax –If unpaid
sales tax liability and municipal tax pertaining to last quarter of the
accounting period are paid within the time stipulated for filing
return of income under s. 139(1), s. 43B cannot be invoked for
disallowing the same.
Express Hotel (P) Ltd., CIT v/s.
(2006)200 CTR 476 = 281 ITR 160 = 192 Taxation 308 =
153 Taxman 156(Guj)
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(8) Tax liability – Unpaid sales tax liability, if paid before the due date of
filing the return under s. 139(1) cannot be disallowed under s. 43B.
Zaverchand Gaekwad (P) Ltd., CIT v/s.
(2006) 202 CTR 94 = 192 Taxation 298 (Guj)
(9) Manufacture of country spirit ‐ Fees and additional fees payable
under West Bengal Rules on import of spirit ‐ Whether duty or cess
or countervailing duty – Fee under Rules not price for grant of
privilege – Matter remanded for fresh disposal.
Varas International P. Ltd., CIT v/s.
(2006)284 ITR 80 = 154 Taxman 331= 204 CTR 119 = 156 Taxation
455 (SC)
(10) Disallowance under s. 43B – Royalty – Royalty is not a “tax” or
“duty” but a payment for the user of land – Words “cess” or
“fee” and the phrase “by whatever name called” have been
added by substituting cl.(a) of s.43B w.e.f 1 st April,1989–
Therefore, s.43B as applicable to assessment year under
consideration cannot be invoked for disallowing the
outstanding royalty–Moreover, the royalty liability had become
due in the last quarter of the financial year and was payable
and actually paid in the next accounting year before the due
date of the return – Hence, disallowance rightly deleted.
Gujarat Industrial Products , CIT v/s.
(2005) 193 CTR 527 = 274 ITR 635 = 148 Taxman 264 (Guj)
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(12) Whether where sales tax collected by assessee company satisfies
State’s Sales Tax Deferrment Scheme, the same is not caught by
mischief of section 43B – Held, yes. Circulars & Clarifications –
Circula;’No. 496 dated 25‐9‐1987.
Goodluck Silicate Industries (P) Ltd., CIT v/s.
(2004) 134 Taxman 715(Guj)
(13) Deduction only on actual payment – Excise duty – Customs duty ‐
Actual amount paid to be allowed as deduction irrespective of
amount included in valuing closing stock –
Berger Paints India Ltd. v/s. CIT
(2004)266 ITR 99=187 CTR 193=135 Taxman 586=180 Taxation 10(SC)
(14) Sales Tax –Sales Tax collected by the assessee in the last quarter of the
previous year which was statutorily payable in the subsequent year
could not be disallowed under s. 43B if it was paid on or before the
due date for furnishing the return of income in respect of previous
year in which the liability to pay such sum was incurred and the
evidence of such payament was furnished by the assessee along
with the return –
Sirhind Steel (P) Ltd. v/s. CIT
(2004) 187 CTR 159(Guj)
(15) Disallowance under s. 43B – Applicability of first proviso to s. 43B ‐
First proviso is retrospective in operation ‐ Tribunal right in
deleting the disallowance.
Patel Filters Ltd. v/s. CIT
(2003)183 CTR 608 =132 Taxman 116 =176 Taxation 567=264 ITR 21(Guj)
(16) Disallowance under s.43B – Electricity duty recovered from
consumers by electricity company –Is payable to the Government in
respect of energy supplied to the consumers – Therefore, it cannot
be said that s. 43B is not applicable to the electricity duty recovered
by assessee on the ground that it did not belong to it, but was
retained by it for a short time as an agent of the Government –
However, the deletion of disallowance was justified under the first
proviso to s. 43B if the duty was actually paid by the due date
envisaged under the said proviso.
Ahmedabad Electricity Co. Ltd., CIT v/s.
(2003) 180 CTR 222 =129 Taxman 190 = 262 ITR 97 =
175 xation 70(Guj)
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(17) Disallowance under s. 43B – Sales Tax – Assessee’s case covered by
Sales Tax deferral Scheme vide Resolution No. INC/1087/143‐1, dt.
21st March, 1988, passed by Gujarat Government which was made
operative from 1st April, 1983, read with CBDT Circular No. 496 dt.
25th Sept. 1987 – Therefore, provisions of s. 43B could not be invoked
in respect of said Sales Tax Liability.
Shree Talal Taluka Sahakari Khand Udyog Mandali Ltd. , CIT v/s.
(2002) 178 CTR 89 = 125 Taxman 248(Guj) &
Goodluck Silicate Industries (P) Ltd., CIT v/s.
(2002) 178 CTR 92 = 171 Taxation 693(Guj) &
Bhagwati Autocast Ltd., CIT v/s.
(2002) 178 CTR 98 = 124 Taxman 452 (Guj)
(18) Interest deficit – Advance Tax – Difference arising because of mistake
in assuming Sales Tax not yet paid to state is not deductible – Proviso
to section that if paid before filing return Sales Tax can be deducted –
Held to be retrospective by Supreme Court ‐ Assessee paying Sales
Tax within time allowed ‐ Interest on deficiency in Advance Tax –
Not payable.
Amrit Banaspati Co. Ltd. , CIT v/s.
(2002) 255 ITR 117 = 175 CTR 202 = 124 Taxman 74(SC)
(19) Sales Tax – Sales Tax collected by the assessee in the last quarter of
the previous year which was statutorily payable in the subsequent
year could not be disallowed under s. 43B if it was paid on or before
the due date for furnishing the return of income in respect of
previous year in which the liability to pay such sum was incurred and
the evidence of such payament was furnished by the assessee along
with the return –
Electro Controls, CIT v/s.
(2002)178 CTR 70 =123 Taxman 824 =171 Taxation 260=
259 ITR 624(Guj)
Gujarat Industrial Products , CIT v/s.
(2005)193 CTR 527= 274 ITR 635 =148 Taxman 264(Guj)
Alembic Glass Industries Ltd., CIT v/s.
(2004) 197 CTR 514 = 279 ITR 331 =149 Taxman 15 (Guj)
Jyoti Electric Motors Ltd. , CIT v/s.
(2002) 173 CTR 537(Guj)
Gujarat Carbon (P) Ltd. , CIT v/s.
(2002) 124 Taxman 477 (Guj)
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(m) DEFERRED ANNUITY
Allowability – Deferred annuity premium in respect of managing
directors – Where the ownership of the policy is with the company,
the company has the discretion to pay the amounts and, therefore
the premium paid on such deferred annuities is not deductible.
Bharat Vijay Mills Ltd., CIT v/s.
(2002) 177 CTR 475 = 124 Taxman 60=171 Taxation 498(Guj)
(n) ENTERTAINMENT EXPENDITURE
(1) Entertainment expenditure – Expenses on presentation of articles to
guests – Term ‘hospitality’ normally cannot be included in the
ordinary meaning of the term ‘entertainment’ but falls within the
enlarged meaning given t the words ‘entertainment’ by Expln. 2 to
s. 37(2A)‐ Expenditure incurred on presentation of articles would
neither fall within the meaning of the term ‘entertainment’ nor
the term ‘hospitality’ ‐ Thus, such expenditure cannot be termed
to be entertainment expenditure ‐ Sales expenditure, however,
would fall within the meaning of the term ‘entertainment
expenditure’ as it was incurred for extending hospitality to guests
of the assessee company and therefore, same is hit by the
provisions of s. 37(2A) r/w Expln. 2 thereto.
Gujarat Carbon Ltd., CIT v/s.
(2005)196 CTR 614=187 Taxation 278=277 ITR 349=148 Taxman
81 (Guj)
(2) Expenditure on providing ordinary meals to outstation customers –
Deductible prior to 1‐4‐1976.
Gujarat State Fertilizer Co., CIT v/s.
(2002) 255 ITR 294 = 174 CTR 318 = 123 Taxman 651(Guj).
(o) EXCHANGE DIFFERENCE
Allowances ‐ Special provision – Changes in rate of exchange of
currency – Scope of provision – Decision of Madras High Court in
Southern Asbestos Cement Ltd. has nothing to do with allowability in
one year in different years – Income Tax Act, 1961, s. 43A(1).
Lucas T.V.S Ltd. , CIT v/s
(2008) 297 ITR 429 = 214 CTR 1 = 166 Taxman 164 =
204 Taxation 3 = 1 DTR 37(SC)
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(p) FINANCE CHARGES
Paid by assessee to COFACE ‐ Manufacturing activity not
commencing in assessment year – Allowable as interest on
borrowed capital and also as business expenditure ‐ Income tax
Act, 1961, ss. 36(1)(iii), 37.
Gujarat Alkalies & Chemicals Ltd., Dy. CIT v/s.
(2008) 299 ITR 85 =167 Taxman 203 =215 CTR 10 =
204 Taxation 51 = 3 DTR 58( (SC)
(q) FOREIGN TOURS EXPENSES
Allowability ‐ Foreign tour expenses of tax consultant ‐ An
employee of assessee company and the tax consultant of the
company were invited to International Tax Planning Meeting
abroad ‐ Tribunal has found that assessee company has not proved
the requisite nexus for establishing that the expenditure in question
was wholly and exclusively incurred for the purpose of the
business of the assessee ‐ No particulars of work done abroad or on
return were furnished ‐ Deduction of expenses incurred on tax
consultant not allowable.
Sarabhai Technological Development Syndicate(P) Ltd. v/s. CIT
(2001)171 CTR 357(GUJ)
Also see cases under Capital or revenue expenditure
(r) GENERAL
(1) Aid to neighbours ‐ Aid to residents living in the vicinity of
factory ‐ In view of absence of finding in the order of the
Tribunal or in the judgment of the High Court on the question
of allowabilty of aid given to residents living in the vicinity of
assessee’s factory as a business expenditure, the impugned
judgment is set aside and the matter is remitted to Tribunal
for de novo examination of this point in accordance with law –
Madras Reflineries Ltd. , CIT v/s.
(2008) 220 CTR 733 =16 DTR 318 = 16 DTR 318=(2009) 177 Taxman
8 (SC)
(2) Section 37 – Expenditure incurred on third person who had no
connection with assessee’s business – High Court held expenditure
being not incurred for the purpose of business not allowable –
Special leave petition dismissed by the Supreme Court – Income‐tax
Act, 1961 – Section 37.
Bureau Veritas India Division v/s. DCIT
(2007)199 Taxation 166(SC)
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(s) GRATUITY
(1) Assessee company making a payment of Rs. 1,89,396 towards
approved gratuity fund on the basis of acturial valuation during
the previous year ending 31st December, 1978 – AO disallowing
claim of the assessee on the ground that the liability pertained to
accounting year 1977 – Assessee also paying gratuity to retiring
directors amounting to Rs. 3,95,491 ‐ Assessee claiming since
contribution made to gratuity fund on the basis of acturial
valuation, it be allowed, and also since the payment made in terms
of section 36(I)(v) out of irrevocable trust approved by CIT–On
reference ‐ Held : both the payment allowable.
Lok Prakashan Ltd., CIT v/s.
(2003) 174 Taxation 560(Guj)
(2) Tribunal held that assessee was eligible under section 40A(7)(b)(ii)
for deduction of provision for gratuity representing annual
incremental liability to gratuity according to actuarial valuation for
years ended 31‐3‐1973, 31‐3‐1974 and 31‐3‐1975 in assessment
year 1975‐76 – High Court disallowed claim, holding that appeallant
was not entitled to claim deduction because it had not made
provision for said amount in accounting year relevant to respective
assessment years and also said sum was not in respect of
accounting year relevant to assessment year 1975‐76 – there was
no infirmity in High Court’s order.
Peria Karamalal Tea & Produce Co. Ltd. v/s. CIT
(2002) 124 Taxman 489(SC)
(3) Amounts not deductible ‐ Gratuity ‐ Conditions laid down in
section 40A(7) have to be fulfilled ‐ Tribunal right in disallowing
claim in respect of rovision for gratuity liability under sections 28
and 37 ‐
Innosearch Ltd. v/s. CIT
(2001) 251 ITR 384 = 114 Taxman 455 = 160 Taxation 642
(4) Provision for gratuity ‐ Year of allowability ‐ Provision made by
assessee for payment of any gratuity is allowable provided the
same has become payable during the previous year ‐ No event as
provided in s. 4 of the Payment of Gratuity Act had taken place
during the relevant period of account ‐ It cannot be stated that
there was any closure of establishment till the point of time the
workmen were effectively in service ‐ Notice dt. 18th April, 1978,
itself lays down that the services would stand terminated
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effective from the close of the business on 19th May, 1978 ‐ Said
date fell beyond the relevant accounting period ‐ Thus, the
retrenchment took place only after the close of the accounting year
‐ Deduction of provision for gratuity not allowable even under the
mercantile system of accounting.
Sarabhai Technological Development Syndicate(P) Ltd. v/s. CIT
(2001)171 CTR 357(GUJ)
(t) GUEST HOUSE EXPENSES
(1) Disallowance under s. 37(4) – Rent, repairs depreciation and
maintenance of guest house – Clear and unambiguous
intention of the legislature is to exclude the expenses towards
rents, repairs, maintenance and depreciation of premises used
for the purposes of guest house of the nature indicated in s.
37(4) from the deductible expenses referred to in ss. 30 and
32 – If the legislature intended to allow deduction in respect
of all types of buildings/accommodations used for the
purposes of business or profession, there was no need to
amend the provisions of s. 37 so as to make a definite
distinction with regard to buildings used as guest houses as
defined in sub‐s. (5) of s. 37 – Any other interpretation would
negate the very purpose of sub‐s. (4) of s. 37 – Therefore,
expenses towards rent, repairs, maintenance and depreciation
of the guest‐house used in connection with the business were
to be disallowed under s. 37(4).
Britannia Industries Ltd. V/s. CIT & Anr.Earlier cases overruled.
(2005) 198 CTR 313=148 Taxman 468= 278 ITR 546(SC)
(2) Disallowance – Expenditure on guest house – Finding that
expenditure had not been incurred on maintenance of guest house –
Expenditure had not be disallowed.
Gujarat State Fertilizer Co., CIT v/s.
(2002) 255 ITR 294 = 174 CTR 318 = 123 Taxman 651(Guj)
(3) Acquisition of capital assets for new units of existing business ‐ For
Bungalow used by employees ‐ Words `guest house' in its ordinary
sense mean any accommodation maintained for extending
hospitality to a guest or an outside visitor ‐ Employees of a
business house cannot be considered guests of the business ‐
Therefore, bungalow exclusively used by assessee for the
purpose of providing accommodation to its employees during their
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visit on official tour cannot be considered as guest house for the
purpose of sub‐s. (4) of s. 37 ‐ Even an accommodation which is
maintained by the assessee for the purpose of extending
convenience and comfort to its employees on leave is outside
the purview of sub‐s.(4) ‐ Fact that the bungalow was maintained for
providing accommodation to the employees while on business tour
implies that the expenditure incurred thereon was laid out wholly
and exclusively for the business ‐ Tribunal justified in allowing
deduction.
Gujarat Industrial Development Corpn., CIT v/s.
(2001)170 CTR 19(GUJ)
(u) INSURANCE PREMIUM & LTC
Company ‐ Disallowance of expenditure – Medical insurance
premium of managing director and his leave travel concession
– No evidence that managing director wanted to take out
insurance policy or avail of leave travel concession ‐ Value of
benefits to be taken into account in computing disallowance.
Mihir Textiles Ltd., CIT v/s.
(2006) 287 ITR 232 = (2007) 197 Taxation 306=210 CTR 445 =
(2008) 8 DTR 156(Guj)
(v) INTEREST
(1) Allowability of – Assessee claimed deduction of interest paid on
amount borrowed for purpose of paying income tax ‐ Such interest
would not amount to business expenditure.
Packart (P) Ltd. v/s. CIT
(2003) 131 Taxman 239(Guj)
(2) Tribunal disallowed assessee’s claim for deduction on account of
interest –Tribunal was justified in disallowing assessee’s claim in
view of fact that assessee’s claim on account of interest had been
disallowed on similar facts in earlier assessment year.
Kalindi Investments (P) Ltd. v/s. CIT
(2002) 124 Taxman 475(Guj)
(w) INTEREST ON BORROWED CAPITAL
(1) Interest on funds borrowed for installation and commissioning of
second manufacturing plant – Section 36(1)(iii) – Tribunal upholding
disallowance of interest of Rs. 27,96,55,759 as being capital – High
Court observes that section 36(1)(iii) makes no difference between
money borrowed to acquire a capital asset or revenue asset ‐
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72
Assessee’s appeal allowed – (Business expenditure – Interest on
funds borrowed – Section 36(1)(iii)).
Gujarat State Fertilizer & Chemicals Ltd. v/s. ACIT
(2009) 208 Taxation 444(Guj)
(2) Amortisation of preliminary expense – Short term loans, whether
allowable – Income Tax Act 1961, ss. 35D, 260A ‐ Expenditure
incurred to create brand name with enduring benefit, whether
allowable ‐ Interest on borrowed capital – Allowance available even
in relation to borrowing for capital purpose – Borrowing for
purchase of machinery for purpose of business – Allowance of
interest to be made even if machinery not used in the year of
borrowing ‐ Income Tax Act, 1961, ss. 32 , 36(1)(iii) (before
amendment with effect from April 1, 2004), 37.
Core Health Care Ltd., Deputy CIT v/s. Deputy CIT v/s.
(2008) 298 ITR 194 = 167 Taxman 206 = 215 CTR 1=
204 Taxation 51 = 3 DTR 49 (SC)
(3) Assessee to prove borrowing was for purpose of business – Firm ‐
Disallowance ‐ Money borrowed from partner – Firm also to prove
further that borrowing was after formation of partnership, and was
in terms of deed of partnership and that interest did not exceed 18
per cent simple interest per annum – Interest in excess not
allowable – Income tax Act, 1961 (as amended by Finance Act, 1992),
ss. 36(1)(iii), 40(b)(iv).
Munjal Sales Corporation v/s. CIT
(2008)298 ITR 298 =215 CTR 105 = 168 Taxman 43 =
204 Taxation 198 = 3 DTR 217 (SC)
(4) Interest ‐ Borrowing for purchase of capital assets – Not put to use
in concerned financial year – Allowance of interest to be made –
Income Tax Act, 1961, s. 36(1)(iii) (before amendment with effect
from April 1, 2004
Arvind Polycot Ltd., Asstt. CIT v/s.
(2008) 299 ITR 12 = 215 CTR 15 = 167 Taxman 200= 3 DTR 63 (SC)
(5) Borrowing for purchase of capital assets‐Not put to use in concerned
financial year– Allowance of interest to be made income Tax Act,
1961, s. 36(1)(iii) (before amendment with effect from April 1, 2004).
United Phosphorous Ltd., Jt. CIT v/s.
(2008)299 ITR 9 =215 CTR 13 =167 Taxman 261=
204 Taxation 114 = 3 DTR 61(SC)
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(6) Assessee to prove borrowing was for purpose of business –
Disallowance – Money borrowed from partner – Firm also to prove
further that borrowing was after formation of partnership, was in
terms of deed of partnership and that interest did not exceed 18 per
cent simple interest per annum – Interest in excess not allowable.
Munjal Sales Corporation v/s. CIT
(2008) 215 CTR 105 = 168 Taxman 43 = 298 ITR 298 = 204 Taxation
198 = 3 DTR 217 (SC)
(7) Deduction – Acquisition of preference shares carrying coupon rate of
4 per cent dividend – Tribunal allowing interest on borrowed fund
at 4 per cent and not at 7.5 per cent – Proper – Income tax Act, 1961,
s. 36(1)(iii).
Arvindbhai Narottambhai (HUF), CIT v/s.
(2008)306 ITR 33 = (2009)177 Taxman 68 (Guj)
(8) Assessment years 1986‐87 to 1994‐95 – Assessee company
had obtained loans in foreign currency for modernization and
expansion of its existing business ‐ Since repayment of those
loans was stipulated in instalments, company had booked
forward contract for delivery of required foreign currency on
stipulated dates – Contract was entered into for entire
outstanding amount and delivery of foreign currency was
obtained under contract for instalment due from time to
time – Balance value of contract after deducting amount
withdrawn towards repayment was rolled over for a further
period up to date of next instalment – For that purpose,
assessee company paid roll over premium to a bank –
Assessee was entitled to deduction of roll over charges under
section 36(1)(ii) .
Elecon Engg. Co. Ltd. v/s. Asstt. CIT
(2008) 173 Taxman 107 = 207 Taxation 488 = 220 CTR 577
= 12 DTR 179(Guj)
(9) Loan from sister concerns for acquisition of shares – Assessee
company having prima facie acquired the shares of AEC Ltd. Through
finances arranged mainly from T Group (sister companies) only to
enable T Group to acquire and takeover the business of AEC Ltd.
High Court erred in dismissing the appeals on the question of
deductibility of interest paid by the assessee to T Group on the
ground that no substantial question of law arose for determination –
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Appeals are restored to the High Court to dispose of the same in
accordance with law.
Ashini Lease Finance (P) Ltd., CIT v/s.
(2008) 217 CTR 17 = 7 DTR 68 = (2009) 309 ITR 320(SC)
(10) Assessee to prove borrowing was for purpose of business – Firm –
Disallowance ‐ Money borrowed from partner – Firm also to prove
further that borrowing was after formation of partnership, was in
terms of deed of partnership and that interest did not exceed 18 per
cent simple interest per annum.
Munjal Sales Corporation v/s. CIT
(2008) 298 = 215 CTR 105 = 168 Taxman 43= 298 ITR 298 = = 204
Taxation 198 = 3 DTR 217(SC)
(11) Amount borrowed for new assets – Interest paid in respect of
borrowings on capital assets not put to use in the concerned
financial year is allowable deduction under s. 36(1)(iii).
Ishwar Bhuvan Hotels Ltd. , CIT v/s.
(2008) 215 CTR 14 = 3 DTR 62(SC)
(12) Purchase of land with buildings thereon ‐ Assessee
demolishing buildings and selling scrap materials – Income
from sale of scrap material treated as business income – Delay
in paying purchase consideration – Interest paid by assessee –
Revenue expenditure – Income tax Act, 1961, s. 37(1).
Kerala Road Lines v/s. CIT
(2008) 299 ITR 343 = 215 CTR 401= 168 Taxman 308=4 DTR 305 (SC)
(13) Advance given towards purchase of tea estate – Assessee was
entitled to deduction of interest payable on the amount outstanding
towards purchase of tea estate notwithstanding the fact that
assessee was engaged in liquor business.
Arun Family Trust v/s. CIT
(2007) 207 CTR 168= 196 Taxation 191 = 163 Taxman 285
= 165 Taxman 15 (Guj)
(14) Acquisition of capital assets for new units of existing business ‐ For
applicability of s. 36(1)(iii) the only requirement is that the interest
must be in respect of capital borrowed for the purposes of
business ‐ Sec. 36(1)(iii) nowhere stipulates that such borrowing
has to be only on revenue account ‐ There is also no requirement
that the capital asset for the acquisition of which the borrowings
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were made should have been put to use ‐ Expln. 8 to s. 43(1)
nowhere provides that the interest pertaining to the period prior to
the asset being first put to use has necessarily to be capitalised and
will not be allowed as deduction under s. 36(1)(iii) ‐ Assessee had
capitalised the interest but has given up its claim for depreciation
on larger amount of actual cost of machines purchased out of
borrowings ‐ Therefore, deduction was allowable in respect of
interest on borrowing though pertaining to the period prior to
commencement of production.
Core Healthcare Ltd., Dy. CIT v/s.
(2001) 169 CTR 416 = (2008) 14 DTR 332(GUJ)
(x) LIABILITY OF PREDECESSOR
Allowability ‐ Assessee company took over the running business of
a firm and undertook to pay the outstanding remuneration
payable to its income tax practitioners ‐ As the going concern was
purchased with assets and liabilities, the liability constituted an
integral part of purchase consideration ‐ It cannot be accepted that
the outstanding remuneration was paid by assessee company
solely to maintain cordial relationship with the practioners who
continued to represent the assessee company in its income tax
cases ‐ Payment was made to fulfl the express terms of the
agreement of purchase of the going concern of the firm ‐ Such
payment cannot therefore, he held to be expenditure incurred
wholly and exclusively for the purpose of the business of the
assessee company and cannot be allowed as deduction.
Garden Silk Mills (P) Ltd., CIT v/s.
(2001) 170 CTR 450 = 252 ITR 804(GUJ)
(y) LITIGATION EXPENSES
(1) 4Allowability of ‐ Whether legal and professional expenses were
allowable as revenue expenditure ‐ Held, yes.
Dinesh Mills Ltd. Ltd. V/s. CIT
(2003) 130 Taxman 260 = 177 Taxation 295 (Guj)
(2) Legal expenses in connection with amalgamation of company – Since
the amalgamation is resorted to for smooth and efficient conduct of
the business of the company whether it is transferee company or
transferor company, such legal expenses are laid out wholly and
exclusively for the purpose of the business – It cannot be held
otherwise merely because the assessee company in the instant
case was transferor company – Moreover, the liability to pay such
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legal expenses arises in respect of the period when the transferor
company still continue to exist.
Akme Electronics & Control (P) Ltd., CIT v/s.
(2004)187 CTR 606=180 Taxation 214=267 ITR 396= 137 Taxman
263 (Guj)
(3) Litigation expenses for recovering advance towards capital asset –
Tribunal
held that once there was a breach of the agreement it could not be
said that the expenditure so incurred had direct connection with the
acquisition of the capital asset i.e premises ‐ This expenditure had
connection with the recovery of the amount and, therefore it was
allowable as a revenue expenditure ‐ No error in the view taken by
the Tribunal.
Gujarat Steel Tubes Ltd., CIT v/s.
(2002)177 CTR 191=123 Taxman 994= 258 ITR 235=171Taxation
274(Guj)
(4) In connection with investigation by Commission of inquiry ‐ If the
expenditure is such that it is incurred in connection with some
activity or transaction which is directly or substantially connected
with the running of the business of the assessee and if it pertains to
business itself it should be considered as business expenditure ‐
State Government appointed a commission of enquiry to
investigate the irregularities or illegalities allegedly committed
by the assessee company, its officers and one of its directors ‐
Assessee engaged an advocate to represent the assessee and to
render necessary assistance to the commission so that it could
come to the right conclusion ‐ Commission was required to be
properly assisted by placing relevant facts in its proper perspective
‐ Assessee wanted to protect its business goodwill and wanted to
ascertain the conduct of its officers and the director ‐ Thus, the
expenditure incurred by the assessee for engaging an advocate is
an expenditure allowable under the provisions of s. 37(1).
Gujarat Agro Oil Enterprises, CIT v/s
(2001) 170 CTR 458 = 118 TAXMAN 150 = 256 ITR 230 = 166
Taxation 138 = 125 Taxman 912 (GUJ)
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(z) MOTOR CAR EXPENSES
(1) s. 37(3A),(3B) ‐ Repairs and insurance of motor car – Repairs
and insurance of motor car cannot be considered for
disallowance under s. 37(3A) ‐ Vehicle tax and driver’s salary –
Vehicle tax and driver’s salary are in the nature of expenditure
incurred on running and maintenance of motor cars as
contemplated under cl. (ii) of s. 37(3B) and deductible under s.
37(1) and, therefore, said expenses are to be disallowed under
s. 37(3A).
Indian Petrochemicals Ltd. CIT v/s.
(2007) 207 CTR 551 = 197 Taxation 317 (Guj)
(2) Expenditure on maintenance of vehicles – Part of motor car
expenses not disallowable as personal and non business use of car –
Income Tax Act, 1961, s. 37.
Dinesh Mills Ltd. v/s. CIT
(2004) 268 ITR 502(Guj)
(3) Tribunal was right in law in holding that a sum of Rs. 20,000 out of
motor car expenses was not disallowable as personal and non
business use of motor car in hands of assessee .
Dinesh Mills Ltd. Ltd. V/s. CIT
(2003) 130 Taxman 260 = 177 Taxation 295(Guj)
(za) PAYMENT TO RETIRING PARTNER
Allowability of ‐ Assessee firm claimed as business expenditure
compensation paid to retiring partners quantified in context of
orders which were pending at date of their retirement in lieu of
their foregoing right interest and title in assets and liabilities, firm’s
name and other rights in firm – That was disallowed by Assessing
Officer being expenditure of capital nature but was allowed in
appeals – Said payment could not be allowed as expenditure
incurred by firm wholly and exclusively for purpose of business but
was a capital payment.
Shree Laxmi Textiles & Allied Corpn., CIT v/s.
(2003)128 Taxman 176 = 174 Taxation 563 =183 CTR 44( (Guj)
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(zb) ROYALTY
(1) Royalty for use of technical know –how ‐ CIT(A) found that the
payment of royalty was required to be made for a period of five
years – Therefore, royalty is payable for certain period of time as
long as the assessee can use the technical know‐how and is
allowable as revenue expenditure.
Zaverchand Gaekwad (P) Ltd., CIT v/s.
(2006) 202 CTR 94 = 192 Taxation 298 (Guj)
(2) Payment by way of royalty – Revenue Expenditure.
Mihir Textiles Ltd., CIT v/s.
(2002) 256 ITR 528 = 172 CTR 344 = 166 Taxation 713 =
121 Taxman 60(Guj).
(3) Deductible as revenue expenditure.
Jyoti Electric Motors Ltd., CIT v/s.
(2002) 173 CTR 538(Guj)
(4) Assessee entering into a collaboration agreement for obtaining
technical
know how as well as technical assistance for manufacture of carbon
black – Pursuant to the agreement assessee paying Rs. 22.25 lakhs
for obtaining technical know how which was capitalized ‐ Over
and above assessee making payment to the company for royalty
based on sales – Royalty disallowed by the AO but allowed by ITAT –
Held, relevant agreement not produced ‐ Order of the ITAT correct
– Question answered in favour of the assessee.
Gujarat Carbon Ltd., CIT v/s.
(2002) 167 Taxation 469 = 254 ITR 294 = 124 Taxman 477( (Guj)
(zc) REPAIRS
(1) “Current repairs” – Test – Not the same as and is different from test
for revenue expenditure – Textile mill – Replacement of worn out
ring frames ‐ Not “current repairs” – Income tax Act, 1961, s. 31(i).
Saravana Spinning Mills P. Ltd., CIT v/s.
(2007) 293 ITR 201= 163 Taxman 201= 211 CTR 281=
9 RC 422(SC)
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(2) Disallowance – Scope of section 37(3A) – Disallowance only of
expenditure not covered by sections 30 to 36 – Expenditure on
repairs and insurance of motor car – Not to be taken into
account in computing disallowance under section 37(3A) –
Income Tax Act, 1961, s. 37(3A)‐ May be incorrect in view of
Britania Industries Ltd. v/s. CIT (2006) 198 CTR 313(SC).
Broach Textile Mills Ltd., CIT v/s.
(2006) 280 ITR 335= 200 CTR 142= 192 Taxation 562 =
154 Taxman 113 (Guj)
(zd) RURAL DEVELOPMENT PROGRAMME
Conditions for allowance – Institution must hold valid certificate of
approval and institution should furnish certificate of approval of
programme by prescribed authority – No further condition –
Assessee entitled to allowance if such conditions are satisfied ‐ No
obligation to see proper utilization of funds by institution ‐
Subsequent withdrawal of approval ‐ No effect.
Chotatingrai Tea, CIT v/s.
(2002) 258 ITR 529(SC)
(ze) SALES PROMOTION
(1) Disallowance u/s. 37(3A)of the IT Act – Advertisement, publicity
& sales promotion – Whether commission reimbursed to the
distributor paid to sales representative is covered under
section 37(3A) – Held, no – Commission paid to the sales
representative is for services rendered & not sales promotion
expenses – Reference answered in favour of assessee & against
the revenue – A.Y 1980‐81 – Income Tax Act, 1961 – s. 37(3A).
Lakhan Pal National Ltd., CIT v/s.
(2007)196 Taxation 201(Guj)
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(2) Disallowance – Amounts spent on sales promotion – Difference
between sales promotion and sales commission – Incentives
paid to sales representatives cannot be disallowed.
Lakhan Pal National Ltd., CIT v/s.
(2007)292 ITR 167 = 196 Taxation 201(Guj)
(3) Commission paid on sales to Agents dealers – Whether falls under
‘sales promotion expenses’ & hit by section 37(3A) – Held, no –
Revenue’s appeal dismissed – A.Y 1984‐85 & 1985‐86 – Income Tax
Act, 1961, s. 37(3A).
Arunodata Mills Ltd., CIT v/s
(2007)196 Taxation 203(Guj)
(4) Expenditure on sales promotion – Discount in sale price – Not
expenditure on sales promotion ‐ Amount of discount cannot be
disallowed.
P.M Diesel P. Ltd. , CIT v/s.
(2006)284 ITR 146 = 193 Taxation 119 = 204 CTR 328 (Guj)
(zf) TECHNICAL KNOW HOW FEE
Applicability of s. 35AB vis‐à‐vis s. 37(1) – Assessee having claimed
deduction of royalty paid under an agreement for transfer of
technical know how, issue involved interpretation of s. 35AB –
Matter is remitted for fresh consideration, after construing the
agreement between the parties as to whether the expenditure is
capital or revenue in nature and thereafter decide the question of
applicability of s. 35AB.
Swaraj Engines Ltd., CIT v/s.
(2008) 216 CTR 365 = 171 Taxman 495= 7 DTR 65(SC)
(zg) TAX PAYMENT BY SUCCESSOR
Disallowance under s. 40(a)(ii) – Income Tax liability of predecessor
firm paid by successor – Not deductible in view of clear provision of
s. 40(a)(ii) – Said section does not make any distinction between the
income tax paid by assessee on its own income and the income tax
paid by the assessee on the income of its predecessor – Even
otherwise, assessee was one of the partners of the erstwhile firm
and having taken over the liabilities was bound to pay the income
tax dues of the firm under the provisions of s. 189.
Himson Textile Engineering Industries (P) Ltd. V/s. CIT
(2004) 187 CTR 88 = 180 Taxation 93= 267 ITR 612 = 137 Taxman
432 (Guj)
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(zh) TRAVELING EXPENSES
(1) Rule 6 D ‐ Limit prescribed in r. 6D should be applied to each
tour individually and not to all tours made by an employee
during the relevant year consolidated together.
Express Hotel (P) Ltd., CIT v/s.
(2006) CTR 476 =281 ITR 160 = 192 Taxation 308 = 153
Taxman 156(Guj)
(2) Travel expenses of employees – Expenditure on each trip to be
taken into account – Income Tax Act, 1961 – Income Tax Rules,
1962, R. 6D.
Sayaji Iron and Engineering P. Ltd., CIT v/s.
(2006) 281 ITR 438= 192 Taxation 588(Guj)
23. BUSINESS INCOME
(a) BENEFIT UNDER S. 28(iv)
(1) Reduction in liability by way of commutation – Assessee acquiring
four divisions as going concerns along with all assets and
liabilities, which included the amount payable to four
investment companies in five equal annual instalments, reduction
in liability on commutation of liabilities at a discounted rate of
12 per cent did not constitute income in the hands of assessee
nor could be charged to tax as benefit or perquisite under s.
28(iv), more so when in the case of one of the recipient
investments companies, its claim for deduction of the said
amount was disallowed by the Court.
Elscope (P) Ltd., CIT V/s.
(2008) 215 CTR 16 = 206 Taxation 327(Guj)
(2) Chargeability ‐ Reduction in liability by way of commutation ‐
Assessee acquiring four divisions as going concerns along with all
assets and liabilities, which included the amount payable to four
investment companies in five equal annual instalments, reduction
in liability on commutation of liabilities at a discounted rate of 12
per cent did not constitute income in the hands of assessee nor
could be charged to tax as benefit or perquisite under s. 28(iv)
more so when in the case of one of the recipient investments
companies, its claim for deduction of the said amount was
disallowed by the Court.
Elscope (P) Ltd., CIT V/s.
(2008) 215 CTR 16 = 206 Taxation 327 = 2 DTR 329, 342 (Guj)
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(b) BUSINESS INCOME OR CAPITAL GAINS
Vis‐à‐vis business income – Profit from sale of shares –
Tribunal found that there was a long gap between the date of
acquisition of shares and their sale and the shares having
been shown as investment in wealth tax returns right from the
asst. yr. 1957‐58 profits from sale of shares were chargeable as
capital gains and not business income – Tribunal was correct in
holding that CIT was not justified in his revisional jurisdiction
under s. 263 to hold that income was assessable as business
income.
Rewashanker A. Kothari, CIT v/s.
(2006)201 CTR 510 = 283 ITR 338 = 193 Taxation 581 =
155 Taxman 214 (Guj)
(c) BUSINESS INCOME OR INCOME FROM HOUSE PROPERTY
(1) Chargeable as ‐ Assessment year 1992‐93 to 1999‐2000 –
Assessee carrying on business of hire purchase, took a land
on lease constructed a multi storeyed building thereon and
let out same to a bank and others – It received hiring
charges and maintenance charges from lessees and
claimed same as business income for assessment year
1997‐98 – Assessing Officer, however, held same as income
from house property – Commissioner (Appeals) confirmed
assessment order and directed to reopen cases for
assessment years 1992‐93, 1995‐96, 1996‐97 and 1999‐
2000 by issuance of notice under section 148 – On appeal,
Tribunal held hiring charges received by assessee as
business income – Against notices issued under section
148 for reopening assessments, assessee filed writ petition
before High Court – By impugned order High Court held
that for all assessment years income should be treated as
business income ‐ It was not open to High Court to direct by
an omnibus order that all earlier years were connected
years and that income be treated only as business income
when it was not a case of block assessment – Even
otherwise it was not open to High Court to entertain writ
petitions and parties should have been relegated to move
High Court by filing appeal under section 260A .
Divya Investment (P) Ltd., Dy. CIT v/s
(2008) 171 Taxman 92 = 4 DTR 188(SC)
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(2) Income from business or profession – Factory building raised
before it could be put up for business use was leased out as per
High Court orders in view of disputes between the directors –
Lease rent assessed under the head “House Property” – Tribunal
held it as assessable under the head “Business or Property” –
High Court confirmed Tribunal’s order, Income Tax Act, 1961, s.
14.
Hagochi Chemicals Pvt. Ltd., CIT v/s.
(2001) 196 Taxation 171(Guj)
(3) Sub‐lessee developing property as business center and providing
services – Amount received assessable as business income –
Saptarshi Services Ltd. , CIT (Asst.) v/s.
(2004) 265 ITR 379= 181 Taxation 204 (Guj)
(4) Income from house property ‐ Assessment treating income
derived by assessee company from letting out office premises
along with certain facilities and services to various persons as
business income, was held by Commissioner under section 263
as erroneous and prejudicial to interest of revenue and was set
aside with direction to Assessing Officer to assess said income as
property income – Prime object of assessee under said
agreement was to let out portion of said property to various
occupants by giving them additional right of using furniture and
fixtures and other common facilities for which rent was being
paid month by month in addition to security free advance
covering entire cost of said immovable property – It would be
wrong to say that assessee was exploiting property for its
commercial business activities and such business activities were
primary motto and letting out property was secondary one –
From agreement between two parties, it was clear that primary
object was to let out portion of said property with additional
right of using furniture and fixtures and other common facilities
for which rent was being charged from month to month and
therefore, income derived from said property was income from
property which should be assessed as such.
Shambhu Investment (P) Ltd., CIT v/s.
(2003) 129 Taxman 70 = 263 ITR 143 = 184 CTR 91 (SC)
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(5) Property used for business – Tribunal found that the
property in question was brought into partnership as
capital contribution by one of the partners for its
exploitation as a business asset – From the very inception
of the firm, the income from the said property has been
assessed under the head ‘business’ and that the assessee
firm had been granted registration/renewal under s. 185
despite the fact that in the earlier years the only source of
income of the assessee was exploitation of the said
property – There is nothing to dislodge the aforesaid
findings of the Tribunal ‐ Therefore, income from the
property has to be treated as business income and not as
income from house property.
Gaekwad and Co., CIT v/s.
(2006) 202 CTR 166= 284 ITR 382 (Guj)
(d) BUSINESS INCOME OR OTHER SOURCES
Vis‐à‐vis income from other sources – Rental income ‐ Assessee
company took a building on lease and rented out the same after
amending its objects clause to enable it to carry on said activity –
Year wise comparison of the figures of rent received by the
assessee and the rent paid clearly established that the assessee had
undertaen the said activity as a business venture – Rental income
was, therefore, taxable as business income and not as income from
other sources.
Amora Chemicals (P) Ltd., CIT v/s.
(2002)178 CTR 64=125 Taxman 255 = 171 Taxation 505=258 ITR
519(Guj)
(e) EXEMPTION
(1) Accumulation of income – Application for accumulation filed
during pendency of appeal before Tribunal – When the matter
is pending before the Tribunal by way of an appeal, the
assessment proceeding can be said to be pending – It cannot
be contended that the assessment proceeding come to an end
when the assessment order is framed – Hence, Tribunal was
well within its jurisdiction to entertain the new ground by
which the assessee trust claimed the benefit under s. 11(2)
and adjudicate upon it – Tribunal having found that the
assessee trust had complied with all the requirements
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stipulated in s. 11(2), it was justified in holding that the
assessee is entitled to benefits of s. 11(2).
Mayur Foundation, CIT v/s.
(2005)194 CTR 197 = 274 ITR 562 =
187 Taxation 95 (Guj)
(2) Delay in filing application under s. 11(2) – When decision on the
question whether delay should be condoned or not entails drastic
civil consequences on assessment of the trust, the principles of
natural justice are required to be read into the provisions of s.
119(2)(b) – All CITs have been instructed to dispose of the
applications for condoning the delay in filing applications under s.
11(2) in terms of Circular No. 273, dt. 3rd June, 1980 – CIT was not
justified in dismissing the petitioner’s application for condonation
of delay in filing application under s. 11(2) without giving any
opportunity of hearing and without considering the relevant
criteria laid down by the CBDT for this purpose ‐ Impugned order
of the CIT quashed and set aside and he is directed to decide the
matter afresh after giving opportunity of personal hearing to the
petitioner’s representative.
Gujarat Institute of Desert Ecology v/s. CIT
(2003) 180 CTR 351 =260 ITR 595 = 174 Taxation 221=
131 Taxman 274
(3) Bar of s. 13(1)( c) – Dividend received by assessee trust on the shares
which were donated to assessee and which were received by
assessee by way of bonus would not attract provisions of s. 13(2)(h)
– Such dividend would be exempt from tax – However, dividend
received on shares which were purchased by assessee would be
subject to provisions of s. 13(2)(h) and would subject to tax.
Ambalal Sarabhai Charity Trust
(2002) 172 CTR 161 = 121 Taxman 463(SC)
(4) Contribution towards corpus – Contribution received towards
specific purpose of construction of Wadi – Would not from part of
the income of the trust.
Sthanakvasi Vardhman Vanik Jain Sangh, CIT v/s.
(2002) 178 CTR 95 = 171 Taxation 685(Guj)
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(5) Assessee claiming exemption – AO holding since Trust having
deposited certain amounts with certain companies in contravention
of rules not entitled to the benefit of donation or exemption –
Order of the AO confirmed by CIT – Assessee pleading that amounts
having already withdrawn from the companies and invested as per
rules and there being a technical default exemption be granted –
Held, CIT be directed to pass fresh orders considering the view point
of the assessee keeping in mind the decision of Division Bench of
this Court in the case of N.N Desai Trust v/s. CIT 246 ITR 452.
Orpat Charitable Trust v/s. CIT
(2002) 169 Taxation 49 (Guj)
(6) Charitable Trust ‐ Purpose not confined to religious or charitable use
‐ Property could be used for social cultural and allied purpose at
sole discretion of trustee ‐ Trust not entitled to exemption.
Gangabhai Charities v/s. CWT
(2001) 250 ITR 666(SC)
(7) Dividend ‐ Dividend on shares received as donation and on bonus
shares
exempt ‐ Dividend on shares purchased by trust covered by section
13(2)(h).
Ambalal Sarabhai Charity Trust, CIT v/s.
(2001)252 ITR 610(GUJ)
(f) GENERAL
(1) Purchase of units with mainly borrowed funds – After receiving
dividend units sold at a loss – Question whether transaction is
business or an adventure in the nature of trade – One of the
considerations – Whether similar operations carried on by assessee
– Supreme Court – Matter remanded to Appellate Tribunal for fresh
consideration – Income Tax Act, 1961, s. 28.
Anil Jain v/s. CIT
(2007) 294 ITR 435 = 164 Taxman 319 = 212 CTR 347(SC)
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(2) Business Income or Income from House Property ‐ Rental
income from property held as stock‐in‐trade – Rental income
derived by assessee from the property which was treated as
stock‐in‐trade is assessable as business income and cannot be
assessed under the head “Income from house property”.
Neha Builders (P) Ltd. , CIT v/s.
(2007) 207 CTR 231= 196 Taxation 242 =
164 Taxman 342 (Guj)
(3) Where in addition to letting buildings or parts thereof, assessee
was also rendering numerous services to tenants, income received
by assessee towards rent from property leased by it, would be
treated as ‘Income from house property’ whereas income received
towards different services rendered to tenants would be treated as
‘Profits and gains of business or profession’ and, accordingly
allowable expenditure would be deducted from respective heads of
said income.
Sarabhai (P) Ltd. , CIT v/s.
(2003) 129 Taxman 43 = 182 CTR 447=263 ITR 197 =176
Taxation 84 = (2008) 10 DTR 194(Guj)
(4) Rental income and service charges – Assessee co‐operative society
providing various facilities to its members and occupiers of the
property such as maintenance of lifts, etectricity, sanitation, internal
telephone , security arrangement, etc. – All these aspects taken
collectively indicate that the activity of the society is business
activity, though may not be aimed at making profit ‐ Token rent
of Re. 1 charged from the allottee members was not changed
with a view to exploit the property ‐ After the shops or godowns
were allotted to the members, they alone had the right to derive
income from such property by assigning it to others – Therefore,
income derived by assessee by charging such nominal rent would
not fall under the head income from house property but under the
residuary head “income from other sources” ‐ Income derived by
assessee from the occupants and/or members for rendering
incidental services would fall under the head “business income” as
these services are provided by the assessee to fulfil its object of
providing godowns, shops and other amenities for the trade of
the members – Apart from this, assessee being an AOP, cl. (iii) of s.
28 would also get attracted ‐ Letting out the premises to banks, post
office and canteens was with a view to facilitate and provide
amenity to the traders and fell within the business activity of the
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assessee and, therefore income derived by way of rent from
banks, post office and canteens would fall under the head
“business income” ‐ Similarly the auditorium is mainly used by the
assessee for fulfillment of its object though occasionally used by
outsiders also and, therefore income derived therefrom would fall
under the head “business income” ‐ There is no nexus between
the objects of the assessee society and the activity of constructing
and letting out restaurant and the hotel fall and thus the income
from letting of revolving restaurant and the hotel would fall under
the head “income from house property” and not “business income”.
Surat Textile Market Co‐op. Shops & Warehouse Society Ltd., CIT
v/s.
(2003)183 CTR 556 = 132 Taxman 146 = 176 Taxation 575=
264 ITR 289(Guj)
(5) Cash Compensatory Support ‐ Is revenue receipt exigible to tax.
Gujarat Steel Tubes Ltd., CIT v/s.
(2002) 177 CTR 191 = 123 Taxman 994 = 258 ITR 235=
171 Taxation 274(Guj)
(6) Benefit or perquisite under s. 28(iv) – Sales Tax Refund – Monetary
benefit or perquisite cannot be taxed by invoking the provisions of
s. 28(iv) –
Saurashtra Packaging (P) Ltd., CIT v/s.
(2002) 178 CTR 83 (Guj)
(7) S. 170, 176 (3A) – Discontinuance of business – Succession to
business – Sec. 176 (3A) can be applied only when there is
discontinuance of business ‐ Business of erstwhile firm was taken
over by an ex‐partner (assessee) as a going concern ‐ Assessee
received sales tax refund subsequently ‐ Business continued after
the take over – Provisions of s. 176(3A) could not be invoked for
including the amount of sales tax refund in the taxable income of
the assessee.
Saurashtra Packaging (P) Ltd., CIT v/s.
(2002) 178 CTR 83 (Guj)
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(8) Cash assistance – In view of clause (iiib) of section 28 inserted by
the Finance Act, 1990 with retrospective effect from 1‐4‐1967,
amount of export cash assistance is a revenue receipt and liable to
be taxed.
Deversons (P) Ltd., CIT v/s.
(2002) 124 Taxman 472(Guj)
(9) S. 28(iv) – Value of any benefit or perquisite, arising from business
or exercise of profession – Cost price of milk powder and soya flour
received by assessee from UNICEF free of charge was not
deductible in computation of total income.
Kaira Dist Co‐op. Milk Producer Union Ltd., CIT v/s.
(2002) 124 Taxman 473(Guj)
(10) Business ‐ Firm ‐ Partner ‐ Amount received on retirement from
firm ‐ Not a benefit or perquisite arising from business ‐ Receipt of
amount is not from "sale" within the meaning of section 41(2) ‐
Amount not assessable under section 28(iv) or 41(2) ‐.
Bharatkumar R. Panchal, CIT v/s.
(2001) 252 ITR 454(GUJ)
(g) PROFITS U/s. 41(1)
Remission or cessation of liability – Mere withdrawal of Court
cases challenging liability to municipal tax and submitting the
disputes to arbitration would not amount to cessation of liability
so as to attract s. 41(1).
Office of the official Liquidator, CIT v/s.
(2008) 218 CTR 165 = 205 Taxation 241 = 3 DTR 165(Guj)
(h) SALE OF SCRAP
Assessee demolishing buildings and selling scrap materials
– Income from sale of scrap material treated as business
income.
Kerala Road Lines v/s. CIT
(2008) 299 ITR 343 = 215 CTR 401=168 Taxman 308 =
4 DTR 305 (SC)
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24. CAPITAL GAINS
(a) COST OF ACQUISITION
(1) Cost with reference to certain modes of acquisition –When
subsidiary company disposes of asset, cost of acquisition in hands of
subsidiary company cannot be any other cost but cost in hands of
previous owner – Assessee company was a wholly owned subsidiary
of KPPL – KPPL had acquired all equity shares of a company ‘A’ at Rs.
1,11,00,000 and, therefore, ‘A’ became wholly owned subsidiary of
KPPL at Rs. 55,36,680 and as a result ‘A’ became wholly owned
subsidiary of assessee ‐ Subsequently, ‘A’ went into voluntary
liquidation and distributed assets valued at Rs. 93,24,000 in favour
of assessee – Assessing Officer invoked section 46(2) and taxed
surplus after deducting amount paid by assessee for acquisition of
shares i.e Rs. 55,36,680 and rejected assessee’s plea that for
purpose of computing capital gains chargeable to tax, cost to
previous owner, i.e KPPL in terms of section 49(1)(iii)(e) should be
considered – Merely because cost of shares to assessee was less than
their cost to KPPL, that by itself could not be criterion for giving a go
by to legislative intent and scheme of Act ‐ Therefore, capital gains
under section 46(2) had to be computed by taking cost of acquisition
of shares in hands of previous owner, i.e KPPL.
Brahmi Investments (P) Ltd., CIT v/s.
(2006) 153 Taxman 471 = 204 CTR 319 = 286 ITR 66 (Guj)
(2) Agricultural Land – Transfer of land converted from agricultural to
non‐agricultural ‐ Circular stating that cost of acquisition would be
value on date of such conversion ‐ Circular in force in assessment
year 1971‐72 – Cost of acquisition to be calculated as per circular for
assessment year 1971‐72 – Income Tax Act, 1961, s.48.
Vyas B.B , CIT v/s.
(2003)261 R 73 =128 Taxman 166 =174 Taxation 556 =
183 CTR 108 (Guj)
[but see contrary, view in 159 ITR 141(Guj)]
(3) Portion of property belonging to assessee acquired ‐ Statutory
compensation for injury to unacquired portion – It is part of full
value of consideration for portion acquired.
Mahalakshmi (P) (Smt) v/s. CIT
(2002) 255 ITR 647 = 176 CTR 103(SC)
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(b) CHARGEABILITY
(1) Acquisition of assessee’s banking undertaking by Government –
Compensation received by assessee on nationalization of its
banking undertaking which included intangible assets like
goodwill, tenancy rights, manpower and banking licence, not
being allocable item wise, it is not possible to computer
capital gains and therefore, it is not taxable under s. 45.
PNB Finance Ltd. v/s. CIT
(2008)220 CTR 110 = 307 ITR 75= 175 Taxman 242 =11 RC 607 =
15 DTR 47=(2009) 208 Taxation 370(SC)
(2) Chargeability – Consideration received in lieu of surrender of
tenancy rights – Tenancy rights is a capital asset and surrender
thereof would attract s. 45 only – Such consideration cannot be
treated as a casual and non‐recurring receipt under s. 10(3) so as to
bring it to tax under s. 56.
Mahendra R. Divecha, CIT v/s.
(2005)199 CTR 721(Guj)
(c) COMPUTATION OF CAPITAL ASSET
(1) State sold the immovable property by public auction to realise its
dues and paid over the balance to the assessee after deducting its
due towards 'kist' and interest ‐ Immovable property and the price
realised therefor belonged to the assessee ‐ Therefore, capital gain
has to be computed on the full price realised in auction.
Attili N. Rao, CIT v/s.
(2001) 171 CTR 188 = 252 ITR 880 = 119 Taxman 1030(SC)
(2) Assessee purchasing certain agricultural land and throwing the same
in the hotch‐potch of the HUF – Later, HUF partitioned and the
assessee paying Rs. 23,000 to equalize his share in the land on
partition – Assessee pleading that the payment of Rs. 23,000 in the
cost of land as paid by assessee – Held, a sum of Rs. 23,000 paid to
the HUF on partition for equalizing his interest in the land to be
taken, as cost.
Narendra N. Chauhan, CIT v/s.
(2003)173 Taxation 522 =261 ITR 185 =181 CTR 412 =
131 Taxman 42(Guj)
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(d)CONTRIBUTION OF CAPITAL (SHARES) BY PARTNER TO FIRM
(1) Assessment year 1983‐84 – In absence of ascertained cost of
acquisition, charge under head ‘capital gains’ cannot be
fastened to full value of consideration – Where assets had
been acquired by a mode specified in section 49(1)(iii)(a) but
neither its cost nor date of acquisition was ascertainable,
income tax authorities were not right in working out capital
gains.
Manoharsinhji P. Jadeja, CIT
(2005) 148 Taxman 110 = 199 CTR 223 (Guj)
(2) Revenue admits in no uncertain terms that the capital assets were
transferred within the meaning of s.2(47) from the assessee to the
partnership firm by way of capital contribution ‐Hence, it is not
possible for the Revenue to contend that the firm was not genuine –
Transfer being without consideration, no tax can be levied on capital
gains.
Subodhchandra S. Patel, CIT v/s.
(2003) 184 CTR 393(Guj)
(e) DEDUCTION U/S. 48 ‐ PRIORITY
Priority vis‐à‐vis exemption under s. 54E – While computing long
term capital gains, deduction under s. 48(2) is required to be allowed
before exemption under s. 54E.
Sercon (P) Ltd. & Ors. V/s. Asstt. CIT
(2008) 218 CTR 479 = 174 Taxman 245 = 207 Taxation 610 (Guj)
(f) DISTRIBUTION OF ASSETS BY COMPANIES IN LIQUIDATION
Assessment year 1988‐89 – Where a holding company by virtue of
being a shareholder, had received assets on voluntary liquidation of
its subsidiary company, value of assets received by holding company
on date of distribution was liable to be taxed under section 46(2) and
section 47(v) would not apply to such transaction.
Brahmi Investments (P) Ltd., CIT v/s.
(2006) 153 Taxman 471= 204 CTR 319=286 ITR 66 (Guj)
(g) EXEMPTION ‐ s. 54
(1) Section 54 – Capital gains on sale of residential house – Investment
from salE consideration another residential house – Held, exemption
to HUF not allowable ‐ Assessment year 1981‐82.
Naresh Ratilal Shah, CIT v/s.
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(2006)192 Taxation 574(Guj)
(h) S. 47(iv)
(1) Distribution of assets by company in liquidation – Distribution of
assets which are not capital assets under s. 2(14) – Sec. 46(2) is an
independent charging section and provides for a distinct method of
calculation of capital gains – It does not make any reference to
capital assets either in connection with the imposition of capital
gains tax or its computation – Parliament appears to have
deliberately chosen to use the word ‘assets’ in s. 46(1) and (2),
ostensible intention being to bring assets of all kinds within the
scope of the charge ‐ If the words ‘capital assets’ and ‘assets’ as used
in ss. 45(1) and 46, respectively did not overlap there was no need
to provide for a non obstante clause in s. 46(1) with reference to s.
45 ‐ What is not a capital asset may yet be an asset for the purposes
of s. 46(2) ‐ Therefore, assessee shareholder is liable to pay tax on
the market value of the assets, whether capital or any other asset
(agricultural land in the present case) received from the company in
liquidation as on the date of distribution as provided under s. 46(2).
Bagavathy Ammal, N. V/s. CIT & Anr.
(2003)179 CTR 458 =259 ITR 678 =173 Taxation 98 =
127 Taxman 422 (SC)
(2) Loss under “Short term Capital Gain” ‐ Applicability of s. 47(iv) – Loss
incurred under head “short term capital gains” incurred on sale of
shares to a company which was a wholly owned subsidiary of
another company which was a wholly owned subsidiary of assessee
company ‐ Could not be disallowed by invoking s. 47(iv) ‐ There
is no justification for transplanting the wider definition of holding
company under s. 4(1) (c) of the Companies Act into the provisions
of s. 47 of IT Act ‐ Words "any transfer of a capital asset by a
company to its subsidiary company" in s. 47(iv) contemplate only
the immediate subsidiary company of the holding company ‐
Clauses (iv) and (v) of s. 47 lay down two specific conditions for
applicability of said clauses which are quite different from the
criteria laid down in s. 4(1) of the Companies Act ‐ Therefore,
Tribunal was not justified in treating the transferee company as a
subsidiary of assessee company for the purpose of s.47(iv) and
disallowing the claim of loss.
Kalindi Investment (P) Ltd. v.s, CIT
(2001) 171 CTR 99(GUJ)
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(3) Transactions not regarded as transfer under s. 47(ii) ‐ Sale of share
of partitioned property ‐ Ancestral property had been divided
equally among the HUFs of four brothers though not by metes
and bounds under a memorandum ‐ Assessee one of the four
HUFs, had been showing its share of income from the said
property in its return after the said partition ‐ Assessee ‐ HUF sold
its share to HUF of J ‐ Said property was not owned by a BOI or any
AOP as on date of sale ‐ Four different HUFs were having their
distinct share when share of assessee was sold ‐ Capital Gains were
not exempt under s. 47(ii).
Dilip Chinubhai Shah v/s. CIT
(2001) 171 CTR 294(Guj)
(i) LONG TERM OR SHORT TERM
(1) Member of Co‐operative Housing Society allotted a flat – Date
of acquisition of flat is the date of allotment of share in
society ‐ Share allotted in November 1980 – Possession of flat
in September 1983 ‐ Sale of flat in April, 1984 – Gains were
long term capital gains– Income Tax Act, 1961, ss. 2(29B), 112.
Jindas Panchand Gandhi , CIT v/s.
(2005) 279 ITR 552 (Guj)
(2) Assessee acquiring shares in co‐operative Housing Society and
allotted flat in 1979 – Possession of flat obtained in October, 1981
and sale in December, 1982 – Shares in Co‐operative Housing
Society held for more than thirty six months ‐ Gains on sale of flat
are long‐term capital gains.
Anilaben Upendra Shah, CIT v/s.
(2003) 262 ITR 657 = 176 Taxation 334 184 CTR 129(Guj)
(j) LOSS
(1) Capital loss – Commutation charges or discount towards share
call moneys – The amount that the assessee was to receive was
towards share capital – Share capital appears on the liabilities
side of the balance sheet and at no point of time the assessee
was in possession of or entitled to any asset ‐ In the absence
of any asset, there is no question of transfer of capital asset
and the basic condition for invoking s. 45 is not fulfilled –
Thus, the claim of the assessee that the amount forgone by it
represented capital loss is not tenable.
Kailash Investmens (P) Ltd. v/s. CIT v/s.
(2006)200 CTR 21= 281 ITR 92 = 192 Taxation 583 (Guj)
94
95
(2) Loss on cancellation of order for supply of machinery – Contract
between the assessee and the supplier of machinery was not a
capital asset in the hands of the assessee and there was no transfer
whatsoever within the meaning of s. 2(47) when the assessee
cancelled the contract and therefore, the resultant loss incurred by
assessee was not allowable as short‐term capital loss.
Patel Brass Works v/s. CIT
(2006) 205 CTR 139= 286 ITR 598(Guj)
(k) RESIDENTIAL HOUSE
(1) Sale of house used for residential purposes and purchase or
construction of another house for residential purposes– Scope of
section 54(1)– Meaning of “residence” ‐ Residence means permanent
residence– Sale of house used for residential purposes and purchase
of another house immediately thereafter for temporary residence
and construction of permanent residence within two years –Sale of
temporary residence within three years–Assessee can claim
exemption u/s.54(1) in respect of construction of permanent
residence.
Harsutrai J. Raval v/s. CIT
(2002)255 ITR 315 = 174 CTR 540=169 Taxation 77 =122 Taxman 165(Guj)
(l) TRANSFER
(1) Assessment year 1989‐90 – Assessee entered into an agreement to
sell certain land to ‘K’ for Rs. 25 lakh – Subsequently, said land was
divided into plots and 24 sub‐divided plots were transferred by
assessee to nominees of ‘K’ for consideration of Rs. 15.2 lkh in
relevant assessment year – Assessing Officer worked out capital
gain on entire consideration of Rs. 25 lakh, rejecting assessee’s
contention that since he had not given possession of entire area of
land and continued to be in possession of land not transferred,
section 2(47) was not applicable – Order of Assessing Officer was
upheld by Commissioner (Appeals), but Tribunal allowed assessee’s
appeal – Since no revenue or municipal records had been produced
which could have indicated as to whether entire land or a part
thereof stood conveyed and delivered to ‘K’ at relevant time and on
facts, it was not clear as to how many plots stood conveyed and how
many plots remained with assessee – Therefore matter was to be
remitted to Tribunal for fresh consideration in accordance with law
after considering relevant documents.
Ajay Kumar Shah Jagati v/s. CIT
(2008)168 Taxman 53 =215 CTR 396 =205 Taxation 445=4 DTR 214(SC)
95
96
(2) Assessment year 1974‐75 and 1975‐76 ‐ Assessee executed lease
deed in accounting year relevant to assessment year 1974‐75 but
presented document therefore before sub‐registrar and got
registration completed in accounting year relevant to assessment
year 1975‐76 ‐ For purpose of capital gains under section 45
transfer is effected when lease is executed rather than when it is
registered ‐ Held, yes ‐
Interpretation of statutes ‐ Reference to other statutes.
Hormasji Mancharji Vaid , CIT v/s.
(2001) 118 TAXMAN 276(GUJ)(FB)
(3) Compulsory acquisition of land – Physical possession of the
land was given to the municipal corporation on 8 th Feb., 1967 ‐
However, notification under s. 4 of the land Acquisition Act
was issued subsequently on 9 th April, 1967 – Therefore, there
was no effective transfer during the accounting year relevant
to the assessment year under consideration – Hence, capital
gain was not liable to tax in the relevant asst. yr. 1967‐68.
Kohinoor Flour Mills Pvt. Ltd., CIT v/s.
(2005) 197 CTR 167 = Taxation 293 (Guj)
(4) "Transfer", meaning of ‐ Immovable property of value exceeding Rs.
100 –Transfer when "effected" ‐ Date of execution of transfer deed ‐
Registration of transfer deed‐Transfer effective from date of
execution ‐
Mormasji Mancharj Vaid, CIT v/s.
(2001) 250 ITR 542 = 168 CTR 565 = 164 Taxation 277(Guj)
(5) Chargeability – Consideration for surrender of tenancy rights –
Prior to the amendment of s. 55(2) in 1995, if the cost of
acquisition of capital asset could not be determined the
transfer of such capital asset would not attract capital gains
tax – In the instant case, Department’s stand before the High
Court was that the cost of acquisition of the tenancy was
incapable of being ascertained ‐ Said receipt not being
chargeable under s. 45 because of inapplicability of
computation provision cannot be treated as a casual and non‐
recurring receipt under s. 10(3) and be subjected to tax under
s. 56.
Cadell Weaving Mill Co. (P) Ltd. & Anr., Union of India & Anr. V/s.
(2005) 193 CTR 578 = 273 ITR 1 = 142 Taxman 713(SC)
96
97
(m) VALUATION OFFICER – REFERENCE TO
(1) Reference to Valuation Officer –A valuation officer appointed under
Wealth Tax Act can neither be called upon nor he would have
jurisdiction to give a report either to Assessing Officer under Income
Tax Act except when a reference is made under and in terms of
section 55A, or to a competent authority except under section 269L –
In income tax returns assessee disclosed certain amounts which she
had invested in construction of a house – These were not accepted
by Assessing Officer, who referred question of construction cost of
house to Valuation Officer ‐ Assessing Officer reopened assessment
and made addition of excess amount as undisclosed income –
Assessing Officer could not refer matter to Valuation Officer for
estimating cost of construction – Reassessment was bad.
Amiya Bala Paul (Smt) v/s. CIT
(2003)130 Taxman 511 = 182 CTR 489 = 262 ITR 407=
176 Taxation 221 (SC)
25. CASH CREDITS
(1) Assessment year 2003‐04 – Assessing Officer made addition under
section 68 on theground that assessee had deposited cash in bank on
two different dates without having cash balance in hand and he had
also failed to furnish details regarding source of said cash credits –
On appeal Commissioner (Appealsd upheld addition – On second
appeal Tribunal deleted addition holding that there was no evidence
to disbelieve the fact that sufficient cash was available in cash book
on two relevant dates for making deposits and that there was no
reason for disbelieving books of account maintained by assessee –
Whether findings recorded by Tribunal being findings of fact, its
order was to be upheld – Held, yes.
Shailesh Rasiklal Mehta , CIT v/s.
(2009) 176 Taxman 270(Guj)
(2) Assessment year 1987‐88 – In course of assessment proceedings
Assessing Officer compared copy of account of assessee company
as appearing in books of Gujarat Mineral Development Corporation
(GMDC) with books of account of assessee and noticed that certain
drafts allegedly sent to GMDC by assessee had not been accounted
for in its books but entries in respect thereof appeared in account of
assessee in books of GMDC ‐ Assessee replied that it had not sent
said drafts to GMDC – Assessing Officer was not satisfied with reply
of assessee and made addition of that amount – On appeal addition
was upheld on ground that onus laid upon assessee to explain
97
98
source of said drafts – Burden was on department to show that
amount of demand drafts found to be credited in assessee’s
account in books of account of GMDC belonged to assessee by
bringing proper evidence on record and assessee could not be
expected to explain source of income or call responsible officers of
GMDC or bank to discharge burden that laid upon department –
Whether when Assessing Officer had failed to discharge his burden to
prove that amount in question was income of assessee Tribunal was
right in upholding addition – Held, no
Krishna Textiles v/s. CIT
(2008) 174 Taxman 372 = 207 Taxation 559 = 220 CTR 568 =
11 DTR 217(Guj)
(3) Assessment year 1985‐86 – A search and seizure operation was
carried out at residence of ‘R’ wherein a key of bank locker
along with two envelopes containing six promissory notes
were found – ‘R’ in his statement stated that said key of bank
locker and both envelopes containing promissory notes were
handed over to him by assessee – Out of six promissory notes
one promissory note was executed by ‘K’ in his capacity as
partner of firm – ‘K’ in his statement stated that he had signed
said promissory note in favour of assessee on behalf of his
firm after obtaining said amount – However, later on ‘K’
retracted from his statement alleging that same was recorded
under pressure – He along with two other partners of firm also
made voluntary disclosure disclosing certain income which also
included amount covered by said promissory note – Assessing
Officer however treated amount of said promissory note as
income of assessee from undisclosed sources rejecting
assessee’s contentions that he had no concern with said
promissory note nor had he lent any moneys to ‘K’ – It was
found that statement of witness ‘R’ on which heavy reliance
was placed by Assessing Officer while making addition was
neither referred to in assessment order nor a copy thereof was
given to assessee nor assessee was given an opportunity of
cross examining said ‘R’ – Whether on facts addition was
justified – Held, no.
Laxmanbhai S. Patel by his heirs and legal Representatives of
Late v/s. CIT
(2008) 174 Taxman 206 = 207 Taxation 474 = 222 CTR 138 =
12 DTR 108 (Guj)
98
99
(4) Liabilities/deposits taken over by company on incorporation –
Assessee company having been incorporated on 14th Feb 1985 cash
credits appearing in the books of account of its predecessor entity as
on 16th Jan. 1985 whose business was taken over by the assessee
company as a going concern could not be assessed as cash credits in
the hands of assessee company.
Amod Petrochem (P) Ltd., Dy CIT v/s
(2008)217 CTR 401 = 207 Taxation 50 = 307 ITR 265=9 DTR 169 (Guj)
(5) Share application money – If the share application money is received
by the assessee company from alleged bogus shareholders, whose
names are given to the AO, then the Department is free to proceed
to reopen their individual assessments in accordance with law, but
it cannot be regarded as undisclosed income of assessee company.
Lovely Exports (P) Ltd., CIT
(2008) 216 CTR 195 = 6 DTR 308(SC)
(6) Amounts shown as withdrawn from bank and credited to
accounts ‐ Amounts found not to have been received by
assessee at all but utilized to purchase drafts in favour of two
persons ‐ On basis of evidence Tribunal giving benefit of
doubt in respect of two amounts and holding against it on two
others – Discretion not to be interfered with.
D.M Engineering v/s. CIT
(2007) 289 ITR 517(Guj)
(7) Gift from NRI – AO, CIT(A) and Tribunal after consideration of
material on record, having found that the explanation offered
by the assessee was unacceptable and held that NRI gifts were
not real, no substantial question of law arose, and High Court,
was not justified in disturbing said findings of fact and
deleting addition under s. 68.
Mohanakala P. & Ors. , CIT v/s.
(2007) 210 CTR 20 =291 ITR 278= 161 Taxman 169 =
201 Taxation 349 (SC)
(8) Assessing officer obtained information from the witness that
he deposited the money after taking from the partner of the
firm – The cash credits were held as non‐genuine – Further held
action against partner could be taken – Reference decided in
favour of revenue & against the assessee – Income Tax Act,
99
100
1961 , s 68 & 147.
Gujarat Fertilizers v/s. CIT
(2007)196 Taxation 187= 210 CTR 594 (Guj)
(9) Genuineness of transactions – Information from witness that he
had no money with him – Finding that witness was brought to
save assessee – No interference –
Gujarat Fertilizers v/s. CIT
(2007) 293 ITR 70 =196 Taxation 187 =210 CTR 594(Guj)
(10) Genuineness of gift – Addition made by the AO by disbelieving
the explanation of the assessee that the credit entry in the
capital account represented gift from R – Not justified ‐ R
appeared before the AO and confirmed the fact of having made
the gift by way of bank draft – He produced evidence in
support of the source from which the funds for making the gift
were available with him – Revenue has not disputed any of
these facts – Primary onus which rested with the assessee thus
stood discharged – Assessee can be asked to prove the source
of credit in books, but cannot be asked to prove the source of
the source – Tribunal has sustained the addition without
addressing itself to the requirement of s. 68 – Finding of the
Tribunal that the motive for making the gift is not established
has no relevance for disbelieving the gift – Also, the Tribunal
totally failed to consider the fact that the donor has filed gift
tax return and assessment has been framed on the donor –
Nothing has been brought on record to show that the
explanation of the assessee is not satisfactory ‐ Impugned
order of the Tribunal cannot be sustained.
Murlidhar Lahorimal v/s. CIT
(2006)200 CTR 109=280 ITR 512 = 153 Taxation 451 =
193 xation 131 (Guj)
(11) Withdrawals from bank – Amounts credited in the books were
stated to have been received from bank against two bearer
cheques drawn by the assessee firm – Tribunal found that
drafts of larger amounts were obtained by the assessee from
that very bank on the same days on which these cheques
were encashed and the difference of the amounts was paid by
ET Ltd., a group concern ‐ Also, there were notings “DD on
Bombay” on the reverse side of the cheques – However, at the
same time, Tribunal also found rubber stamp bearing
100
101
endorsement “pay cash” as well as token numbers on these
cheques issued by the assessee – Analysis of the bank account
did not lead to a firm conclusion either way – In view of
overall facts and circumstances, Tribunal rightly accepted the
explanation tendered by the assessee and deleted the
additions – However, in respect of two other cheques,
Tribunal found that drafts of identical amounts were obtained
by the assessee from that very bank on the same days on
which these cheques were encashed – Also, there were
notings “DD on Bombay” on the reverse side of the cheques ‐
Further, the draft application forms mentioned the same
cheque numbers respectively and bore the rubber stamp
“transfer” – In view of aforesaid facts the Tribunal concluded
that the proceeds of these cheques were not received by the
assessee in cash but were diverted at the bank counter itself
for purchase of drafts – There is no infirmity in the order of the
Tribunal insofar as appreciation of evidence and recording of
facts are concerned – Additions have been made in relation to
unproved entries of credit in the cash book – No interference
is called for.
D.M Engineering v/s. CIT
(2005) 199 CTR 545 (Guj)
(12) Fixed deposit receipts by co‐operative bank – There was no
obligation on the AO to treat the fixed deposits as income of
the assessee merely because he did not find the assessee’s
explanation satisfactory ‐ Admittedly , AO has not discharged
the onus of proving that the apparent was not real – on the
other hand, assessee has furnished the details which would
discharge the onus that lay on it – Grievance of the AO
that complete details and addresses of the depositors were
not furnished has been found to the incorrect – As regards
the defects in maintenance of records of the bank, CIT(A) as
well as the Tribunal have accepted the explanation tendered
by the assessee – Further, under provisions of s. 80P entire
income from banking activities is exempt in the hands of the
assessee and there can exist no reason for the assesseee
bank to indulge in any activity which would yield
undisclosed income – Hence, deletion of the additions was
justified.
Pragati Co‐operative Bank Ltd., CIT v/s.
(2005)197 CTR 505 = 278 ITR 170 = 149 Taxman 149 (Guj)
101
102
(13) Burden of proof – Tribunal upheld the addition on the footing that
since the assessee did not offer any explanation for cash credit
entries, the amounts in question had to be treated as income
under s. 68 – Not justified ‐ Approach of the Tribunal not in
consonance with the law laid down by the apex Court – Matter
remanded to the Tribunal taking a fresh decision in accordance
with law after applying the test laid down by the apex Court.
Mitesh Rolling Mills (P) Ltd., v/s. CIT
(2002) 177 CTR 142 = 124 Taxman 620 = 258 ITR 278(Guj)
(14) Casual and non‐recurring receipt ‐ Consideration received in lieu of
surrender of tenancy rights – Tenancy rights is a capital asset and
surrender thereof would attract s. 45 only – Such consideration
cannot be treated as a casual and non‐recurring receipt under s.
10(3) so as to bring it to tax under s. 56.
Mahendra R. Divecha, CIT v/s.
(2005)199 CTR 721(Guj)
26. CHARGEABILITY OF INCOME
(1) Income earned in continental shelf of India vis‐à‐vis
applicability of notification dt. 31 st March, 1983 – Notification
dt. 31 st March, 1983 extending the provisions of IT Act, 1961 to
Continental Shelf and Exclusive Economic Zone of India did not
apply to asst. yr. 1983‐84 and was applicable only from asst. yr.
1984‐85.
Oil & Natural Gas Corpn Ltd. v/s.
Atwood Oceanic International, S.A
(2008) 217 CTR 305 =170 Taxman 203 = 8 DTR 257(SC)
(2) Chargeability ‐ Sale of remainderman's interest in trust ‐ T
executed a trust deed whereby the properties received by him on
partition of HUF were settled upon a trust for the benefit of his sister
S ‐ T retained life interest in the properties along with right of
residence for his parents till their death ‐ In the event of death of S,
the immovable property was to go to her surviving son or sons
(assessees) ‐ Interest of assessee was contingent when the trust
deed was executed and same vested in assessee only when S died ‐
There was no previous owner and no conceivable cost of acquisition
‐ Even by applying the provisions of s. 49(1) the backward chain
would snap at settlor and it is not possible to conceive a cost in
the hands of the settlor ‐ Thus, the computation provision fails
102
103
and the capital gains cannot be charged to tax.
Chintan N. Parikh & Anr. v/s, CIT
(2001) 171 CTR 386(GUJ)
27 CHARITABLE TRUST
(a)ASSESSMENT
(1) Interest paid to beneficiaries ‐ In the absence of any term in
the deed of trust or agreement between the trust and
beneficiaries to treat the amount credited to account of
beneficiary and not withdrawn by him as a loan, interest
payment on such amount was rightly disallowed as deduction
and the same was rightly treated as income of the trust.
Arun Family Trust v/s. CIT
(2007) 207 ITR 168= 196 Taxation 191 = 163 Taxman 285
= 165 Taxman 15 (Guj)
(2) Valid of trust – Trust deed executed on stamp paper purchased
in the name of a third party and bearing a date prior to the
date of purchase of stamp paper cannot be accepted as a
genuine document and, therefore, the Tribunal was justified
in holding that no valid trust had come into existence on the
basis of the alleged deed and the income had to be assessed
to tax at rates as applicable to AOP.
Hemesh Family Trust V/s. CIT
(2007) 207 CTR 99 = 197 Taxation 292 = 165 Taxman 233 =
295 ITR 514(Guj)
(3) Application of income – Waiver of loan to weaker sections of
the society – Assessee, a public charitable trust, had advanced
loans in earlier years to persons belonging to weaker
sections of the society as part of its charitable objects –
Same written off as the chances of recovery were found to
be remote and adjusted against the income of the year
under consideration ‐ Tribunal rightly held that the income
was applied in the year under consideration – Assessee
entitled to benefit of s. 11 in respect of amount written off.
Sacred Heart Church, CIT v/s.
(2005) 198 CTR 189 = 278 ITR 180 = 149 Taxman 367(Guj)
103
104
(4) Bar of s. 13(2)(a) – Assessee bourse advanced a sum to B allegedly
for procurement of appropriate premises for the assessee on lease
‐There was no written agreement or proper documentation– Amount
was lent to B for substantial periods without interest and adequate
security ‐Said B, along with several others, was founder of the
assessee association and thus answers the description “founder of
the institution” used in s.13(3)(a) r/w s.13(3)(c)–Consequently,
assessee would lose the benefit under s. 11 by falling within the
mischief of s.13(3)(a) r/w s.13(1)(c)(ii) –Director of IT vs. Bharat
Diamond Bourse (2003) 179 CTR (SC) 225 : (2003)259 ITR 280 (SC)
followed.
Bharat Diamond Bourse, Director of I T
(2004) 192 CTR 506(SC)
(5) Income utilised for benefit of “founder” – Charitable institution a
company limited by guarantee – Person subscribing to
memorandum of association ‐ Is a “founder of the institution” –
Money lent to such person without adequate security or interest ‐
Benefit of exemption lost.
Bharat Diamond Bourse, Director of I.T v/s.
(2003)259 ITR 280 =179 CTR 225= 126 Taxman 365 =173 Taxation
1(SC)
(6) Shares donated to assessee trust and shares received as bonus on
such shares – Dividends from all shares – Exempt – Dividends from
shares purchased by trust – Subject to provisions of section 13(2)(h)
‐ Shares in company donated to trust subject to payment of
specified sum to company – Payment of such sum not a voluntary
diversion of funds – Section 13(3) not applicable ‐ Assessee trust
entitled to exemption under section 11 – Assessee entitled to
deduction of expenditure on objects of trust.
Ambalal Sarabhai Charity Trust
(2002) 255 ITR 586 = 174 CTR 313 = 124 Taxman 771 (Guj)
(7) Assessment of trust – Rectification of trust deed – Resolution
passed by the trustees altering the object clauses which provided
for maintenance and support to the members of settlor’s family
relatives and payment of remuneration to the trustees – Fraud
was played by rectification of the trust deed by altering the
very object of the trust ‐ Trust deed must be read as it originally
stood and trust is to be assessed accordingly.
Shervani Charitable Trust & Ors. V/s. CIT
(2002) 172 CTR 673 = 120 Taxman 496 = 171 Taxation 553(SC)
104
105
(8) Bar of s. 13(2)(h) – Provisions of s. 13(2)(h) were not attracted when
shares of the concerns in which persons specified in s. 13(3) have
substantial interest were donated to the assessee trust ‐
Exemption under s. 11 could not be denied.
Shreyas Nidhi, Swati Nidhi, Venu Nidhi & Swasthya Nidhi , CIT v/s.
(2002) 177 CTR 341 = 171 Taxation 298 = 123 Taxman 840 =
258 ITR 712(Guj)
(b) CHARITABLE PURPOSE
(1) Registration – Commissioner to examine whether object of
assessee falls within definition of “charitable purpose” under
section 2(15) – Object of general utility is charitable purpose –
“Person” in section 2(31) – Includes institution – Assessee
developing and maintaining ports in Gujarat – Object of general
public utility – Whether part of income of assessee is exempt
or not – Irrelevant – Assessee entitled to registration under
section 12A – Income Tax Act, 1961, ss. 2(15), (31), 12A, 12AA.
Gujarat Maritime Board , CIT v/s.
(2007)289 ITR 139 = 208 CTR 439 = 199 Taxation 494 (Guj)
(2) Wakf ‐ Lands of six villages given for upkeep of Roza in 1670 AD –
Enquiry in 1956 under Public Trusts Act and order directing trust to
be registered as a Public Trust Act – Decision in rem – Tribunal on
consideration of material on record also finding that properties
belonged to trust ‐ Trust entitled to exemption under section 11 –
Income spent on maintenance of Sajjadanashin to extent of Rs.
30,000 per annum also entitled to exemption.
Hazarat Pir Shah – E – Alam Roza Estate Trust, CIT v/s.
(2002) 256 ITR 193 = 175 CTR 66 = 122 Taxman 755 =
169Taxation 88(Guj)
(3) Exclusion of income from exemption–Burden of proof on revenue –
Surat City Gymkhana v/s. Deputy Commissioner of Income Tax
(2002) 254 ITR 733 (Guj)
105
106
(4) Diamond bourse – Registered as company limited by guarantee –
Primarly objects to establish facilities to promote diamond export,
effective liaison between industry in India and abroad, promote
trade in exports and imports of diamonds and development India as
a modern diamond market – Dominant purpose advancement of
objects of general public utility – Diamond bourse a charitable
institution.
Bharat Diamond Bourse, Director of I.T v/s.
(2003) 259 ITR 280 = 179 CTr 225 = 126 Taxman 365 =
171 Taxation 1(SC)
(5) Assessing Officer alleged that assessee trust was created to promote
Jainism which is a religion and disallowed assessee’s claim of
exemption under section 11 by invoking provisions of section
13(1)(b) – Since from covenants of trust deed, it was spelt out that
objects of trust were not only to propagate Jainism or help and
assist maintenance of temple, Sadhus, Sadhvis, Shraviks and
Shravaks, but other goals were also set out in trust deed, it could
be said that trust was a charitable religious trust and section
13(1)(b) would not be applicable.
Chandra Charitable Trust, CIT v/s.
(2006)156 Taxman 19 = 206 CTR 418 (Guj)
(c) REGISTRATION
(1) Charitable institution – Object of general public utility – Is
“charitable purpose” – Assessee developing and maintaining
minor ports in State of Gujarat – Object of public utility –
Assessee entitled to registration – Income tax Act, 1961, ss.
2(15), (31), 10(20), 12A – Gujarat Maritime Board Act, 1981, ss.
73, 74, 75.
Gujarat Maritime Board , CIT v/s.
(2007) 295 ITR 561 =(2008) 214 CTR 81=166 Taxman 58 =
203 Taxation 263 = 1 DTR 1(SC)
(2) Exemption under s. 11 ‐ Registration under s. 12A –
Registration under s.12A is a condition precedent for availing
of benefit under s. 11 and 12 and, therefore assessee is not
entitled to claim exemption under ss. 11(1)(a) and 12 in view
of the fact that it has not been granted registration under s.
12A.
U.P Forest Corporation v/s. Dy. CIT
(2007) 213 CTR 473 = 165 Taxman 533 (SC)
106
107
(3) Certification of trust u/s. 80G for purposes of deduction of donations
– Scope of enquiry – That trust had made deposits in institutions not
approved for investment – Not valid reason for rejecting
application for renewal of certification.
Orpat Charitable Trust v/s. CIT
(2002) 256 ITR 690 = 173 CTR 534 = 167 Taxation 22 =
121 Taxman 451(Guj)
(4) S. 12A – Assessee claiming exemption under section 11 – A.O
holding that since assessee not registered under section 12A of the
I.T Act, 1961, not entitled to exemption – Held, in spite of the fact
that assessee not registered under section 12A, AO not precluded
from looking into details relating to exemption.
Surat Tennis Club, ACIT v/s.
(2002) 166 Taxation 65 (Guj)
28. CIRCULARS
(a) BINDING
(1) Commissioner – Scope of power to issue circulars – Not to
create liability where there is none under the statute – Circular
of Commissioner of Trade Tax dated December 13, 2000.
Jhunjhunwala v/s. State of U.P
(2007) 8 RC 52(SC)
(2) Beneficial circulars – To be applied with retrospective effect –
Oppressive circular – To be applied prospectively from date of
issue of show cause notice and not from earlier date.
Suchitra Components Ltd. v/s.
Commissioner of Central Excise.
(2007) 8 RC 204(SC)
(3) Binding on Department.
Pradip J. Mehta v/s. CIT
(2008) 300 ITR 231 = 216 CTR 12 = 169 Taxman 454 =
206 Taxation 169 (SC)
(4) Reassessment ‐ Assessing Officer passing assessment order treating
field latex and centrifuged latex as the same commodity and granting
reliefs – High Court – Judgment holding that they were different
commercial commodities – Reassessment ‐ Not permissible so long
as Circular of Board of Revenue was there treating them as same
107
108
commercial commodity ‐ Circular binding on Assessment Officer –
Kerala General Sales Tax Act, 1963, s. 3(1A).
Kurian Abraham Pvt. Ltd., State of Kerala v/s.
(2008)303 ITR 284 (SC)
(5) SC decision against what is written in the circular – Since
circular binding on revenue authorities matter referred to a
larger bench for decision whether circular will prevail or SC
decision.
Ratan Melting & Wire Industries ,
Commissioner of Central Excise v/s.
(2006)190 Taxation 1 = (2008) 220 CTR 98 = 14 DTR 324(SC)
(6) Scope of – Circular giving administrative directions allocating
work between officers of department – Cannot oust
jurisdiction conferred by ACT – Central Excise Act, 1944, ss.
11A, 37B.
Pahwa Chemicals P. Ltd. v/s. Commissioner of Central Excise.
(2005)274 ITR 87 (SC)
(7) Though not binding on assessee can be relied on for providing
reasonable
construction – Circular No. 779 dated September 14, 1999.
Sedco Forex International Drill Inc. v. CIT
(2005)279 ITR 310 = 199 CTR 320 = 149 Taxman 352 (SC)
(8) Binding nature – Extent thereof – When a circular issued under s.
151A of the Customs Act remains in operation, the Revenue is bound
by it and cannot be allowed to plead that it is not valid or that it is
contrary to the terms of the statute ‐ Although a circular is not
binding on a Court or an assessee, it is not open to the Revenue to
raise a contention contrary to a binding circular – A show cause
notice and demand contrary to existing circulars of the Central
Board of Excise and Customs are ab initio bad ‐ Further , it is not
open to the Revenue to advance an argument or file an appeal
against the circular.
Indian Oil Corporation Ltd. & Anr.,
Commr. of Customs Etc. Etc. v/s.
(2004)187 CTR 297 =136 Taxman 491=180 Taxation 637 =
267 ITR 272 (SC)
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(9) Power to issue circulars – As long as circular emanates from CBDT
and contains orders, instructions or directions pertaining to proper
administration of the Act, it is relatable to source of power under
section 119 irrespective of its nomenclature ‐ Circular No. 789
dated 13‐4‐2000 falls well within parameters of powers exercisable
by CBDT under section 119.
Azadi Bachao Andolan, Union of India
(2003) 132Taxman 373 =263 ITR 706 =184 CTR 450 =
177 Taxation 775 (SC)
(10) Power to extend time for filing returns – Sec. 119(1) specifically
empowers the CBDT to issue such orders, instructions and directions
to other IT authoritites as it may deem fit for the proper
administration of the Act – By issuing Circular No. 113 , dt. 20th June,
1973 the CBDT granted general extension for furnishing the
returns of income and net wealth for asst. yr. 1973‐74 till 15th Aug.
1973 – Same was not beyond the power of the CBDT – Though s. 139
was inserted in s. 119(2)(a) w.e.f 1st April, 1990, it cannot be said
that prior to that date, there was any restriction on the exercise of
powers by the CBDT as sub‐s. (2) of s. 119 starts with the words
‘without prejudice to the generality of the foregoing power’ – Even
otherwise, the said circular was benevolent one.
Hargovind Damji v/s. CIT
(2002) 177 CTR 20 = 123 Taxman 949(Guj)
(11) Central Board of Direct Taxes – Circulars ‐ Nature of ‐ Executive
authority ‐ Circulars ‐ Beneficial to assessee ‐ Binding nature ‐
Settlement Commission ‐ Can waive or reduce interest in according
with circular of CBDT Circular No. 400/234/95‐IT(B), dated May 23,
1996.
Anjum M.H Ghaswala, CIT v/s.
(2001) 252 ITR 1 = 171 CTR 1 = 119 TAXMAN 352(SC)
(12) Press Release do not amount to circulars.
Anjum M.H Ghaswala, CIT v/s.
(2001) 252 ITR 1, 171 CTR 1, 119 TAXMAN 352(SC)
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29. CLUBBING OF INCOME UNDER S. 60
(1) Gift of share in partnership firm to trust – Assessee having
gifted one‐half of his partnership share in a firm by a deed of
assignment to a trust created by him which includes the right of
share in the profits and obligation to share losses arising from
the business of said firm as also to share in the assets of said
firm on dissolution thereof, it cannot be said that there is no
transfer of assets from which the income by way of share in
the profits arises to the transferee and therefore, provisions of
s. 60 are not attracted.
Jayantilal D. Patel, CIT v/s.
(2007)212 CTR 271 = 162 Taxman 385(Guj)
(2) Income of trust – Trust admittedly not created by the Manging
Trustee i.e the assessee – Income of the trust not taxable in the
hands of assessee under s. 60.
Sharad Narandas Patel, CIT v/s.
(2002) 176 CTR 41 = 169 Taxation 682 = 123 Taxman 646(Guj)
30. COMMISSIONER ‐ WAIVER
(1) Waiver – Commissioner – Discretionary power – Conditions for
waiver – Refusal of waiver for failure to make arrangements for
payment of interest and penalty – No interest levied – Payment of
penalty not condition for waiver – Assessee satisfying all
prerequisite conditions ‐ Reason for rejecting waiver application
not germane – Order quashed and waiver of penalty in entirety –
Wealth Tax Act, 1957, s. 18B.
Kiritkumar K. Shroff v/s. CWT
(2005) 278 ITR 79 = 148 Taxman 540= 199 CTR 19(Guj)
(2) Interest Chargeable ‐ S. 234A, read with sections 234B, 234C, of the
Income Tax Act, 1961.– Waiver of interest levied under sections
234A, 234B and 234C is to be considered when delay on part of
assessee is due to unavoidable circumstances or on account of
circumstances beyond her control – Assessee filed a petition before
Chief Commissioner for waiver of interest stating, inter alia, that
delay in filing returns was on account of fact that there was delay
in arranging for funds and that she had filed returns voluntarily and
she had paid a lot of taxes over years and no taxes were due and
only a part demand relating to interest was due – Chief
Commissioner waived interest under section 234A to extent of 50
per cent and declined to grant such waiver in respect of interest
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levied under sections 234B and 234C holding that relevant clause
(e) of para 2 of Circular dated 23‐5‐1996 which confers power of
waiver on Commissioner is only applicable to waiver of interest
under section 234A and not waiver of interest under section 234B or
section 234C ‐ If circumstances of instant case had been considered
to be unavoidable circumstances for purpose of waiver of interest
under section 234A, same would have to be considered as
unavoidable circumstances for purpose of reduction/waiver of
interest under sections 234B and 234C as well as ‐ Circular dated 23‐
5‐1996 is also applicable to waiver of interest levied under sections
234B and 234C – Assessee was unable to file returns within time or
to pay taxes within time due to unavoidable circumstances – It was
a fit case for granting waiver under section 234A, 234B and 234C to
extent of 75 per cent .
Bhanuben Panchal and Chandrikaben Panchal V/s. Chief CIT
(2004)136 Taxman 237 =188 CTR 449 =269 ITR 27 =
182 Taxation 696 (Guj)
(3) Waiver or reduction under s. 273A – Voluntary filing of return ‐
Subsequent events suggesting that return of assessee for asst. yr.
1986‐87 was filed voluntarily and the case of the assessee was
governed by amnesty scheme ‐ Similar facts were there in the asst.
yr. 1987‐88 and deletions made by CIT(A) were also upheld by the
Tribunal ‐ Matter remanded to CIT for fresh consideration of
waiver application under s. 273A for asst. yr. 1987‐88 in respect of
penalty & interest.
Shantaben R. Choksi (Decd) through LRs V/s. CIT
(2004) 190 CTR 491(Guj)
31. COMPANIES
(a) ADDITIONAL TAX UNDER S. 104
Leviability – Reference in quantum proceedings having been
answered in favour of assessee, and thus there being no.
distributable income, there can be no levy of additional tax under
s. 104.
Elscope (P) Ltd., CIT V/s.
(2008) 215 CTR 29(Guj)
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(b) DEEMED DIVIDEND
(1) Loan or advance to shareholder – Closely held companies of
assessee – Assessee withdrawing sums from his capital
account and making investment – Sums debited in assessee’s
capital account with respective firms – Paid on behalf of
assessee – Transactions satisfy test of section 2(22)(e)‐
Income Tax Act, 1961.
Mukundray K. Shah, CIT v/s.
(2007) 288 ITR 433 = 209 CTR 97 = 160 Taxman 276=
200 Taxation 272 (SC)
(2) Company advancing large amounts to low paid employee ‐
Employee
advancing loans to assessee, Managing Director ‐ Advance to
employee for benefit of assessee ‐ Loans to assessee
given by employee can be treated as dividend ‐ Payment,
meaning of ‐
Alagusundaram Chettiar (L) v/s. CIT
(2001) 252 ITR 893(SC)
(c) MAP
Special provisions – Jurisdiction of Assessing Officer – Limited to
matters specified in Explanation to section 115J – No power to
rework net profit arrived at by company by consistently charging
depreciation at the rates specified in Income tax Rules – Income
tax Act, 1961, s. 115J – Companies Act, 1956, Sch. VI, Parts II and
III, Sch. XIV.
Malayala Manorama Co. Ltd. V/s. CIT
(2008) 300 ITR 251 = 216 CTR 102 = 169 Taxman 471 =
206 Taxation 157 = 6 DTR 1(SC)
(d) PUBLIC ARE SUBSTANTIALLY INTERESTED
(1) Conditions precedent in s. 2(18)(b)(B)(c) – Two parts of sub cl.
(c) of s. 2(18)(b)(B) are separate and independent of each other –
More than 50 per cent of the shares of the assessee company
having been unconditionally allotted to two companies and these
companies being companies “to which this clause applies”,
assessee company stands covered by the definition of “company
in which public are substantially interested in s. 2(18).
Emtici Engineering Ltd., CIT v/s.
(2008) 218 CTR 154 = 174 Taxman 525(Guj)
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(2) Private Company (CC) ‐ Director’s liability under s. 179 ‐Condition
precedent – Only when it is established that recovery
cannot be made from the company, revenue can initiate
action against the director responsible for conducting affairs
of the company during the relevant accounting period –
Affidavit‐in‐reply is silent as to the total value of the
immovable properties as well as other assets of the
company attached under the order of attachment – Thus,
it is not possible to accept that the Revenue was not able
to recover the outstanding taxes from the company
despite best efforts – Impugned order made under s. 179 is
quashed and set aside.
Gujarat Fertilizers v/s. CIT
(2007) 293 ITR 70 =196 Taxation 187 =210 CTR 594(Guj)
(e) UNDISTRIBUTED PROFITS
(1) Additional Tax ‐ Investment company ‐ Sale of house properties and
rubber plantation ‐ Profits from sale brought to profit and loss
account ‐ Directors treating profits as commercial profits ‐
Invoking provision for imposing additional tax for failure to
distribute specified percentage of profits ‐ Proper ‐
Plantations P. Ltd. (M.R.M) v/s. CIT
(2001) 250 ITR 521 = 169 CTR 432 = 118 TAXMAN 892 (SC)
(2) Nominal delay in declaration of dividend – Dividend was declared by
the assessee company three days beyond the period of 12 months
from the end of relevant previous year – Additional tax leviable.
Alkapuri Investments (P) Ltd. v/s. CIT
(2002) 177 CTR 550 = 124 Taxman 36 = 171 Taxation 495(Guj)
(3) Past losses – Losses incurred by the assessee company in earlier
years is a very important factor which is required to be taken into
consideration before deciding whether the provisions of s. 104 are
to be invoked or not – Statute does not put any limit on the number
of “earlier years” ‐ Total loss of Rs. 1,78,887 which was the
aggregate of losses carried forward in the past seven years was set
off in the relevant year ‐ Having regard to the fact that the
assessee company had incurred losses even in the preceding year
and had made a small profit in the year prior thereto, it was
justified in adopting a conservative approach in declaring small
dividend – Merely because the assessee had made excess
provisions for taxes, it cannot be said that the assessee had not
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taken into consideration past losses – Provisions of s. 104 not
attracted.
Creative Investment (P) Ltd. v/s. CIT
(2004) 188 CTR 6 = 268 ITR 485 =181 Taxation 465 (Guj)
(4) Additional tax under s. 104 – Smallness of profits – CM Ltd. in which
the assessee company is a shareholder, not only declared the
dividends within the relevant previous year ending on 30th Sept.,
1976 but also prepared the dividend vouchers for the dividend
payable to the assessee company within the previous year ‐ Thus,
the contention that the dividend income derived by it from CM Ltd.
did not form part of commercial income of the assessee for the said
previous year is not sustainable – Assessee distributed dividends
after the statutory period was over ‐ It did not show that it could
not declare the dividend within the statutory period on account of
smallness of profits or accumulated losses or other similar causes ‐
Additional tax under s. 104 rightly levied.
Ranoli Investment (P) Ltd. v/s. CIT
(2003)179 CTR 156 = 132 Taxman 895(Guj)
(5) Capital gains on compulsory acquisition of agricultural land – Even
assuming that compulsory acquisition of land is a transfer within the
meaning of s. 45, s. 47(viii) specifically exempts any transfer of
agricultural land effected before 1st March, 1970 – Thus, the
compensation which became payable to the assessee a result of
acquisition of its agricultural land in 1962 was not income and not
chargeable under s. 45 and was not to be included while computing
the total income of the assessee as defined in s.2(45) – Hence, the
entire amount of capital gains did not form part of distributable
income as defined in s. 109(1) – Further jurisdiction under s. 104 is
not to be invoked where the payment of dividend or larger dividend
would be unreasonable having regard to past losses or the
smallness of the profits – There was nothing unreasonable in the
decision of the assessee company not to distribute dividends from
the compensation amount having regard to the accumulated losses
together with the loss of its only asset i.e land ‐ITO could not
therefore exercise jurisdiction under s. 104.
Delhi Farming & Construction (P) Ltd. V/s. CIT
(2003)180 CTR 12 = 260 ITR 561 =128 Taxman 374 =
174 Taxation 421 (SC)
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(f)s. 115JA
(1) Total income less than 30 per cent of book profits –
Deemed income Scope of provision – Book profits –
Assessing Officer to accept authenticity of accounts
maintained in accordance with Parts II and III of Sch. VI
to Companies Act, 1956 – Computation – Adjustments –
Provision made in accounts to be added back – Permissible
only if made for meeting a liability – Provision for bad and
doubtful debts – Not for meeting liability – Provisions for
bad and doubtful debts cannot be added back – Income Tax
Act, 1961, s. 115JA(2)(c).
HCL Comnet Systems and Services, CIT v/s.
(2008) 305 ITR 409 = 219 CTR 222 =174 Taxman 118 =
13 DTR 105(SC)
(2) Book profit under s. 115J – Adjustment for depreciation ‐
Assessee is entitled to change the method of depreciation from
straight line method to WDV method and claim extra
depreciation for current year as also arrears of past years for
purpose of computing book profit under s. 115J.
Rubamin (P) Ltd., CIT v/s.
(2008) 218 CTR 162 = 10 DTR 278(Guj)
(3) Book profit under s. 115J ‐ Adjustment of TDS – TDS on dividend
income debited to dividend account and not debited to P & L a/c.
in accordance with provisions of Parts II and III of Sch. VI of the
Companies Act cannot be added to compute book profits under s.
115J.
Amichand Investment (P) Ltd. V/s. Dy. CIT
(2008)216 CTR 230 = 304 ITR 97 = 206 Taxation 320 =
6 DTR 249(Guj)
(4) Book profits assessment ‐ Nature of ‐ Determination of tax
only after end of relevant year ‐ Advance tax – Interest ‐ Not
leviable ‐
Kwality Biscuits Ltd., CIT v/s.
(2006)284 ITR 434 = 155 Taxman 658= 205 CTR 122 =
195 Taxation 229 (SC)
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(5) Computation – Liability towards excise duty – Finding that
demand notice had been received – Liability disputed and
assessee required to furnish bank guarantee – Liability
towards excise duty an ascertained liability – Deductible.
I.G Gandhi Silk Mills Ltd., CIT v/s.
(2005)274 ITR 274 = 145 Taxman 276 = 187 Taxation 288 (Guj)
(6) Company – (H) Zero Tax Companies ‐ Book Profits – s. 115J.
Net profits in profit and loss account prepared in accordance
with part II and III of Schedule VI to Companies Act – Accounts
scrutinized and certified by statutory auditors ‐ Assessing
Officer has no power to scrutinize except as provide in
explanation.
Apollo Tyres Ltd. v/s. CIT
(2002)255 ITR 273=174 CTR 521 = 122 Taxman 562 =169
Taxation 522(SC)
(7) Book profit ‐ Liability – Scheme ‐ Charge to tax on basis of book
profit – Depreciation – Loss – Investment allowance – Carry
forward ‐ To be done as would be done in the case of normal
assessment ‐ Circular No. 495 dated September 22, 1987 –
Karnataka Small Scale Industries Development Corpn. Ltd. v/s.
CIT
(2002) 258 ITR 770(SC)
32 CONSTITUTION OF INDIA
(a) VIRES
(1) Art. 265 ‐ Excise Duty
Can be imposed only by statute – Constitution of India, art.
265.
Distillers Co. Ltd., CIT v/s.
(2007) 290 ITR 419 = 160 Taxman 252= 209 CTR 177 (SC)
(2) Legislative entries – Schematic interpretation – Doctrine of
pith and substance – Taxation entries – Nomenclature of tax
not conclusive – Nature of levy determines competence.
All India Federation of Tax Consultants V/s. Union of India
(2007) 293 ITR 406 = 163 Taxman 196 = = 211 CTR 449 (Guj)
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(3) Constitution of India – Vires ‐ Capital Gains – Agricultural land situate
within municipal limits – Capital gains arising from sale ‐ Taxable.
Mahajan (M.L), CIT v/s.
(2002) 255 ITR 272 = 124 Taxman 76 = 175 CTR 298(SC)
(b) VIRES OF LICENSE FEE
State Government – Liquor Policy – Retail sale of liquor – Basic
difference between excise duty and licence fee – Licence fee is paid
under contract – Validity cannot be challenged on basis of
fundamental rights – Constitution of India, art. 14.
Lalit Jaggi, State of M.P v/s.
(2008) 11 RC 448(SC)
(c) VIRES OF RULE
(1) Income Tax Rules
Rules cannot override provisions of Act.
Crown Products , CIT v/s
(2008) 304 ITR 106 = = 7 DTR 385 =(2009) 177 Taxman 266 (SC)
(2) Vires ‐ Salary – Perquisite – Rule 3 – Validity ‐ Constitutional validity
of r. 3 as amended by Income Tax (Twenty second Amendment )
Rules, 2001 – Rule 3 as amended by Income Tax (Twenty second
Amendment), 2001, is neither inconsistent with s. 17(2)(ii) r/w
Expln. 1 inserted retrospectively w.e.f 1st April, 2002, nor ultra vires
Art. 14 of the Constitution.
BHEL Workers Union & Anr. V/s. Union of India & Anr.
(2008) 217 CTR 19 = 7 DTR 122 (SC)
(d)VIRES ‐ GENERAL
(1) Vires ‐ Liquor trade – No fundamental right to trade in liquor ‐ But
law regulating trade cannot be arbitrary or discriminatory ‐
Constitution of India, arts. 14, 19(1)(g) ‐ Imposition – Can be only by
statute ‐ Cannot be by way of bye‐laws or rules.
Gupta Modern Breweries v/s. State of Jammu and Kashmir.
(2007) 8 RC 688(SC)
(2) Constitution of India – Vires – Loans or deposits – s. 269 ‐ Provision
requiring receipt by account payee cheque or Bank draft – Valid –
Within legislative competence of Parliament – Not discriminatory –
Provisions for punishment for failure to do so – Not expropriatory ‐
Parliament ‐ Legislative Powers ‐ Legislative entry ‐ “Taxes on
income other than agricultural income “ – Scope of – Of wide
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amplitude – Extends to all ancillary and subsidiary matters –
Constitution of India, Art 246, Sch. VII, List I Entry 82 ‐ Colourable
legislation – Not unless legislature has no power but camouflages in
way as to appear within its competence.
Asstt. Director of Inspection (Investigation) v/s.
Kum. A.B Shanthi
&
Chamundi Granites Pvt. Ltd. v/s. Dy.
Commissioner of Income Tax & Anr.
(2002) 255 ITR 258 – 174 CTR 513 = 122 Taxman 574(SC)
(3) Deposits ‐ Mode of taking/accepting ‐ Whether if any legislation
intended to achieve collection of income tax and to make it easier
and systematic, is enacted such legislation would certainly be within
competence of legislature – Held, yes – Whether section 269SS or
271D, or earlier section 271DD, can be held to be unconstitutional on
ground that it is draconian or expropriatory in nature – Held, no –
Whether section 269SS is in any way violative of article 14 of the
Constitution – Held, no.
Shanthi (Kum. A.B), Asstt. Director or Inspection v/s
(2002) 122 Taxman 574(SC)
(4) Cess – Legislative Competence ‐ Royalty vis‐à‐vis tax – Royalty is not
tax ‐ Royalty is paid to the owner of land who may be a private
person and may not necessarily be State – A private person owning
the land is entitled to charge royalty but not tax – Cess on coal
bearing land is levied on land – Merely because the quantum of
coal produced and dispatched from the land is the factor taken into
consideration for determining the value of land, it does not become a
tax on coal or minerals ‐ Being a tax on land it is fully covered by
Entry 49 List II – Assuming it to be a tax on mineral rights, it would
be covered by Entry 50 in List II – Central legislation has not placed
any limitation on the power of the states to legislate in the field of
taxation on mineral rights – Thus, West Bengal Taxation Laws
(Amendment) Act, 1992, is intra vires the Constitution – Similarly,
levy of cess on tea estates is levy on land forming part of tea estates
which is a well defined classification – Simply determinable on the
basis of quantum of tea produced or dispatched, it does not become
a cess on tea or a tax on production of tea or a tax on income of
land – Impugned cess is covered by Entry 49 in List II – Field of
taxation of brick earth cannot be said to have been covered by
Central legislation by reference to Entry 54 of List I – Cess on brick
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earth whether treated as one on land or as one on mineral rights
would be covered by Entries 49 or 50 in List II – Cess on minor
minerals can be justified as fee for rendering such services as would
improve the infrastructure and general development of the area
and would be covered by Entry 66 in List II – As a tax the impugned
levy of cess is clearly covered by Entry 5 r/w Entries 49, 50 and 66
of List II – Impugned cess by no stretch of imagination can be called a
tax on tax.
Anil Kumar Singh v/s. Collector, Sonbhadra District & Ors.
Bengal Brickfield Owners’ Association & Anr.V/s. State of West
Bengal & Ors.
Terai Indian Planters’ Association & Anr. v/s.
State of West Bengal & Ors.
V/s. State of West Bengal & Ors. &
Kesoram Industrial Ltd. & Ors. V/s.
State of West Bengal & Ors.
(2004) 187 CTR 219 = 266 ITR 721 (SC)
(5) Constitution of India – (B) Vires of provision ‐ Validity of Tax ‐ Partial
cement decontrol – Non levy cement – Amount per tonne of non‐
levy cement produced by manufacturer made payable to cement
regulation account – Compulsory levy amounting to “Tax” – No
provision in statute for levy – Not valid – Cement control order,
1967, rule 9A – Essential Commodities Act, 1955.
Shree Digvijay Cement Co. Ltd. V/s. Union of India
(2003) 259 ITR 705 = 174 Taxation 744 (SC)
(6) Doctrine of unjust enrichment ‐Unjust Enrichment Doctrine does
not apply to state – Right to refund not an absolute or unconditional
right – Burden passed on to consumer ‐ Loss not suffered by
manufacturer ‐ Manufacturer cannot claim refund from State –
Constitution of India, Art. 265.
Shree Digvijay Cement Co. Ltd. V/s. Union of India
(2003) 259 ITR 705 = 174 Taxation 744 (SC)
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(7) Appellant through an advertisement invited applications from
partnership firms of Chartered Accountants for purpose of
empanelment for audit of Government/public sector companies –
Aforesaid advertisement stipulated that excepting certain States,
only partnership firms of Chartered Accountants were eligible for
enrolment on panel and proprietary firms of Chartered Accountants
were made in eligible either to apply or to be empanelled for being
assigned audit work of Government companies – Application of
respondent, a sole proprietor of Chartered Accountants firm in
Gujarat, was rejected on ground that it was not a partnership firm –
Whether whenever appellant appoints an auditor for audit of
Government corporations and public sector undertakings under
Companies Act, 1956, he exercises statutory powers under the
Companies Act and such an exercise of power manifestly is a
statutory function and not a matter of policy – Merely because some
of Chartered Accountants have formed a partnership firm, it cannot
be assumed that they become more efficient for carrying out audit
work than an individual Chartered Accountant who forms
proprietary concern –A Chartered Accountant cannot be
discriminated against merely because he has elected to invest his
professional expertise in a proprietary concern, rather than to
express it in form of a partnership firm –It would be fallacious to
attribute a greater capacity to partnership firms than to proprietary
concerns simply on account of nomenclature or numbers involved ‐
Therefore, classification between proprietary and partnership firms
is arbitrary and unfair, and, accordingly falls on anvil of article 14 –
Held, yes Whether further, if proprietary concerns of Chartered
Accountants are really inefficient, there appears to be no reason why
they have been made eligible to audit Government and public sector
companies in some States and if there is paucity of partnership firms
of Chartered Accountants in such States, services of partnership
firms who are said to be efficient and based in other States could be
taken, then on this ground also impugned notification/advertisement
does not stand test of article 14 .
Kamlesh Vadilal Mehta , Controller and Auditor General v/s
(2003) 126 Taxman 619(SC)
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(8) Constitutional validity of amendment made by IT (Second
Amendment) Act, 1998 – Exemption confined to societies marketing
agricultural produce grown by their members – Clear effect of the
amendment is that s. 80P(2)(a)(iii) must be read as if the substituted
phrase “grown by” from the date the section was introduced ‐ In
making the impugned amendment the legislature does not
“statutorily overrule” the decision in Kerala Co‐operative Marketing
Federation Ltd & Ors. V/s. CIT (1998) 147 CTR(SC) 28 : 1998 (5) SCC
48 as contended by the appellant – There was hardly any
retrospectivity but a continuation of status quo ante as the law
declared in Assam Co‐operative Apex Marketing Society v/s. Addl.
CIT (1993) 113 CTR (SC) 58 : 1994(Supp) 2 SCC 96 held the field till
1998 when it was reversed ‐ Further, the amendment did not
authorize the Revenue authorities to reopen time barred
assessment – Amendment is therefore constitutionally valid.
National Agricultural Co‐operative Marketing Federation of India
Ltd. & Anr. V/s. Union of India & Ors.
(2003) 180 CTR 1=260 ITR 548=128 Taxman 361=
174 Taxation 409 (SC)
(9) Section 1 of the National Tax Tribunal Ordinance, 2003 –
Constitutional validity ‐ Petitioners filed instant petitions challenging
constitutional validity of Ordinance in question on grounds, inter
alia that unusual and exceptional circumstances did not exist for
issuance of Ordinance in question, when Parliament was likely to
meet soon – Union of India were to be restrained till next date of
hearing from issuing any notification under section 3.
Income Tax Appellate Tribunal Bar Assn. v/s. Union of India.
(2004)136 Taxman 484(Guj)
(10) Legislative Powers – Service Tax ‐ Parliament – Competent to levy
service tax – Constitution of India, Sch VII, list I, Entry 97 ‐Incidental
encroachment, Tax on Luxury – Service Tax – No overlapping in law ‐
Tax ‐ Measure of Taxation – Cannot affect validity of tax.
Tamil Nadu Kalyana Mandapam Assn. V/s. Union of India.
(2004) 267 ITR 9 = 188 CTR 297 = 136 Taxman 596 =
181 Taxation 15 (SC)
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(11) Parliament – Service Tax – Imposed on service – Is only tax on
services falling under entry 97 of list I (union list) – is not tax
on goods and passengers under entry 56 of list II (state list) –
Constitution of India, Art. 14, 246, Sch. VII, List I, Entry 97, List
II, entry 56.
Power to remove infirmities in earlier legislation and make
retrospective amendment – Service Tax – Original law
specifically prescribing liability only on providers of services –
Provision making customers receiving services liable in the
case of services by goods transport operations and clearing
and forwarding agents – Declared by Supreme Court to be
invalid – Parliament ‐ Retrospectively amending existing
provisions by imposing liability on receivers of services –
Valid ‐ Does not amount to overruling decision of Supreme
Court ‐ Finance Act, 1994, ss. 65(5), 66(1A), proviso ‐ Finance
Act, 2000, ss. 116, 117. Finance Act, 2003, s. 158 – Service
Tax Rules, 1994, R 2 (1)(d)(xii), (xvii).
Service Tax – Imposed on provider of service ‐ Singling out
only customers of goods transport operators and clearing
and forwarding agents for imposing liability to pay the tax –
Not discriminatory ‐ Constitution of India, Art. 14. Statute –
Constitutionality – Constitution of India, Art. 14.
Gujarat Ambuja Cements Ltd. v/s. Union of India
(2005) 274 ITR 194=194 CTR 428=144 Taxman 512=
188 Taxation 360(SC)
(12) Constitution of India ‐ Retrospectivity ‐ Legislative Powers
Retrospective legislation – Normally not to create offence
retrospectively – Liability to pay tax created retrospectively ‐ Cannot
entail punishment of payment of interest with retrospective effect.
Star India P. Ltd. v/s. Commissioner of Central Excise
(2006) 280 ITR 321 = 150 Taxman 128 (SC)
(!3) Rule 3 – Re perquisites in connection of accommodation to
employees not ultra vires art. 14.
Arun Kumar v/s. Union of India
(2006) 155 Taxman 659 = 286 ITR 89= 205 CTR 193 (SC)
122
123
(14) Constitution of India – ( C) Act of State ‐ Doctrine of Act of State –
Act of state cannot be questioned by any court including Surpeme
Court ‐ Effect of art. 363 of Constitution of India.
Pratapsinhji Ramsinhji, CED v/s.
(2002) 255 ITR 365 = 174 CTR 591 = 169 Taxation 54 =
(2003) 127 Taxman 66(Guj)
33. DEDUCTION
(a) GENERAL
(1) Deductions ‐ Industrial undertaking ‐ Special deduction –
Newly established undertaking – Newly established
undertakings or hotels in backward areas – Deductions are
independent – New undertaking can claim both deductions.
Mandideep Eng. & Pkg. Ind. (P) Ltd., Jt. CIT v/s.
(2007) 292 ITR 1 = 210 CTR 614 = 163 Taxman 337 = 201
Taxation 388 (SC)
(2) Deductions – Scientific Research – s. 35 ‐ Scope of section 35 –
Not necessary that capital asset should be used for scientific
research in previous year ‐ Expenditure on construction of
building for scientific research – Building not used in previous
year ‐ Not relevant – Expenditure deductible under section 35 –
Exemption provision ‐ Liberal construction.
Gujarat Aluminium Extrusions Pvt. Ltd., CIT v/s.
(2003) 263 ITR 453 = 176 Taxation 542 = 133 Taxman 542 =
184 CTR 297(Guj)
(b) s. 80HH
(1) Special deductions under sections 80HH and 80‐I – Income
from sale of empty containers in which raw materials were
purchased – Entitled to special deductions under sections
80HH and 80‐I –Income Tax Act, 1961, ss.80HH, 80‐I.
Core Healthcare Ltd., CIT (Deputy) v/s
(2009) 308 ITR 263 = 221 CTR 580(Guj)
(2) Special deduction – Criteria – Item produced, process
undertaken and resultant output – Hospital Investment in
plant and machinery – Absence of details – Supreme Court ‐
Matter remanded – Income Tax Act, 1961, ss. 32A, 80HH.
Down Town Hospital Ltd. v/s. CIT
(2009) 308 ITR 188(SC)
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124
(3) Computation – Initial depreciation – To be deducted before
making any deduction under s. 80HH.
Cadila Chemicals (P) Ltd., CIT v/s.
(2003)179 CTR 37 = 259 ITR 692 (Guj)
(4) Profits and gains from hotels or industrial undertakings, etc. in
backward areas –Words ‘derived from’ in section 80HH must
be understood as something which has direct or immediate
nexus with an industrial undertaking ‐ Derivation of interest
or profits on deposit with Electricity Board could not be said
to be flowing directly from industrial undertaking and,
therefore deduction for same could not be allowed.
Pandain Chemicals Ltd. v/s. CIT
(2003) 129 Taxman 539 = 262 ITR 278 = 183 CTR 99=
(2004) 179 Taxation 2 (SC)
(5) Exporters – When Tribunal recorded a firm finding of fact
that assessee was exporting ‘cut and polished’ granite blocks
(although not finally cut and precisely polished) and as
assessee processed rough mineral by cutting and processing
which added value to marketable commodity, it was entitled
to deduction under section 80HHC – Circular No. 729 dated 1‐
11‐1995 could be applied by Tribunal for benefit of assessee.
God Granites , CIT v/s.
(2003) 129 Taxman 547 = 183 CTR 20 = 262 ITR 567 (SC)
(6) Profits and gains derived from industrial undertaking ‐ Interest
paid to partners ‐ Deduction under s. 80HH is allowable at the
rate of 20 per cent of profits and gains of the assessee
determined in accordance with and subject to the provisions of the
Act ‐ The term "gross total income" meant, the total income
computed in accordance with the provisions of the Act, before
making any deduction under Chapter VI‐A ‐ Amount of interest
paid by the assessee firm to its partners was not allowable under
s. 40(b) as a deductible expenditure from the gross total income
and consequently that amount was to be treated as a part of
total income of the assessee ‐ Therefore, the amount paid by
way of interest to the partners has to be treated as part of
the "profits and gains to business or profession" for the purpose
of computing relief under s. 80HH.
Kedraj Agricultural Industries , CIT v/s.
(2001)171 CTR 23(GUJ)
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125
(7) Computation – Weighted deduction under s. 35B – Assessee
cannot be allowed deduction under s. 80HH before allowing
weighted deduction under s. 35B.
Swastik Industries , CIT v/s.
(2002) 178 CTR 234 = 125 Taxman 175(Guj)
(c) s. 80HHA ‐ s. 80 HHC
(1) Computation ‐ Adjustment of deduction under s.80‐I ‐In the
absence of any provision which restricts relief s. 80‐I to the
extent the relief is granted under s. 80HHA, Tribunal has not
committed any error in granting deductions both under
ss.80HHA and 80‐I simultaneously without reducing the relief
available under s.80‐I by the amount of deduction granted
under s. 80HHA.
Blue Bell Polymers (P) Ltd., Dy. CIT v/s.
(2008) 217 CTR 324 = 207 Taxation 55 = 9 DTR 49(Guj)
(2) Manufacture or production – Manufacture of bidies ‐ Where
the raw material is subjected to a process or processes of such
a nature that it cannot be termed to be the same as the end
product, and the article produced is regarded by the trade
as a new and distinct article having an identity of its own and
an independent market, the activity amounts to manufacture
or production – Tendu leaves and tobacco which are used as
inputs do not retain independent identity after bidies are
rolled ‐ Commercially, the final product is known as a distinct
commodity and has a separate market – It is immaterial that
the assessee gets the work done through contract workers –
Therefore, assessee was entitled to reliefs under ss. 80HH
and 80‐I – Further, while ascertaining the monetary limit
down for the purpose of determining whether a unit is a
small scale industrial undertaking eligible for relief under s.
80‐I, only the actual cost of plant and machinery relatable to
the industrial undertaking has to be adopted and not all the
assets of the business as a whole.
Prabhudas Kishordas Tobacco, CIT v/s.
(2006) 201 CTR 312 = 193 Taxation 442= 282 ITR 568
(Guj)
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126
(3) Special deduction under section 80HHC – Computation
of “profits of business” – Effect of sub section (2) of
section 80HHC – Receipt of profits attributable to sale
proceeds within six months from end of previous year
or such further period as allowed to be taken into
account – Sale proceeds directly relatable to export ‐
Exchange rate difference pertaining to exports made
earlier – No finding regarding period to which it related
‐ Matter remanded – Income Tax Act, 1961, s. 80HHC.
Amba Impex, CIT v/s.
(2006) 282 ITR 144 = 201 CTR 409 =(2007) 164 Taxman
344(Guj)
(4) Special deduction – Commission or brokerage earned by
person engaged in export – Change of law ‐ Prospective
amendment curtailing scope of deduction – Effect –
Commission or brokerage part of profits of business for
earlier years ‐ Entitled to deduction ‐ s. 80HHC (before
amendment with effect from 1‐4‐1992 by Finance (No. 2)
Act, 1991) – Circular No. 621 dated December 19, 1991 –
Prabhakar (P.R) v/s. CIT
(2006) 284 ITR 548 = 154 Taxman 503= 204 CTR 27 =
195 Taxation 228 (SC)
(5) Special deduction – Scope of – Export of both self
manufactured goods and trading goods – Profits and losses in
both to be taken into account ‐ If after adjustment there is
positive profit deduction available ‐
Mohanachandran Nair, CIT v/s.
(2006) 285 ITR 226 = 205 CTR 123=156 Taxman 149 =
(2007) 196 Taxation 529(SC)
(6) Special deduction under section 80HHC for assessment year
1986‐87 – Computation of special deduction – Total export
sales to be taken into account ‐ Loss in some units not to be
taken into account.
Rolcon Engineering C. Ltd. , CIT v/s.
(2006)286 ITR 450(Guj)
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127
(7) Assessee not an Indian company – Only an assessee being an
Indian company or a person resident in India can claim
deduction under s. 80HHC ‐ Assessee not being an ‘Indian
company” is not entitled to deduction under s. 80HHC in
respect of income earned on sales in India.
Gaskets & Radiators Distributors, CIT v/s.
(2006) 206 CTR 209(Guj)
(8) Interest on deposit, export incentive, and octroi refund
do not form part of the total profits to work out total
turnover and qualifying profit for the purpose of
deduction under s. 80HHC .
Gaskets & Radiators Distributors, CIT v/s.
(2006) 206 CTR 209(Guj)
(9) Allowability – Agricultural primary commodities – HPS
groundnuts are notin the form as actually grown –
Unshelled groundnuts are processed before it attains the
form of HPD groundnuts – Neither the agriculturists nor
the traders regard it as a primary commodity ‐
Irrespective of the fact whether or not HPS groundnuts
retain their characteristics as groundnut, it is regarded
as a commercially different product – Thus, HPS
groundnuts cease to be ‘agricultural primary commodity”
even if they continue to remain agricultural commodity
and assessee is entitled to deduction under s. 80HHC on
export of HPS groundnuts.
Gujarat State Export Corpn. Ltd., CIT v/s.
(2005) 199 CTR 217 =(2006) 280 ITR 62 =
150 Taxman 560(Guj)
(10) Allowability – Incremental turnover – To claim additional
deduction under cl. (b) of sub‐s. (1) of s. 80HHC, assessee is
required to establish that it has exported the same items or
commodities which were exported during the preceding
previous year and the commodity wise export turnover of
such items exceeds the export turnover of the same
commodities in the preceding year ‐ Word “total” cannot be
read before the term “export turnover” in cl. (b) – Phrase
“such goods or merchandise” in cl. (b) refers to identification
of the goods which were exported in the immediately
preceding previous year – It denotes not only qualifying goods
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but also the same goods which formed part of export
turnover in the immediately preceding previous year –
Therefore, export turnover of two commodities being more
than the export turnover of said commodities in the
immediately preceding previous year, additional deduction
was allowable on the incremental turnover even though there
was decline in the overall export turnover during relevant
year as compared to the immediately preceding previous year.
Raymon Glues & Chemicals , CIT v/s.
(2005) 195 CTR 518 = 277 ITR 529 = 189 Taxation 401 (Guj)
(11) Exporters – Assessment Year 1994‐95 – Assessee an
exporter, claimed deduction under section 80HHC –
However, it declared negative profit out of export of
trading goods – Assessing Officer allowed assessee’s
claim – High Court also allowed assessee’s claim without
arriving at finding that whether assessee had shown any
positive profit or not in its export business – Whether
matter should be remitted to High Court for
consideration of matter afresh – Held, yes.
Induflex Products (P) Ltd., ITO v/s.
(2005) 149 Taxman 687 =199 CTR 712= (2006) 280 ITR 1
= 192 Taxation 2 (SC)
(12) Section 80HHA of the Income Tax Act, 1961 – Deductions
Profits and gains from newly established small scale industrial
undertakings – Assessment year 1986‐87 – Whether an
assessee engaged in ship breaking business can be said to be
engaged in a manufacturing activity – Held, no – No ewcweaws
by Supreme Court in (2008) 219 CTR 639 = 175 Taxman 77(SC)
Madhav Industrial Corpn., CIT v/s.
(2004)136 Taxman 416=188 CTR 575=182 Taxation 110 (Guj)
(13) Condition that reserve equal to special deduction should be
created ‐ Amount transferred to reserve less than deduction
allowed – Commissioner in revision issuing notice for reducing
allowance – Appellate Tribunal ‐ Finding that assessee had
failed to create extra reserve in spite of opportunity – High
Court – Dismissing appeal on the ground of question of fact –
Appeal to Supreme Court ‐ Assessee given opportunity to
credit further amount to reserve account and on compliance
held entitled to full deduction .
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129
Karimjee P. Ltd. v/s. Deputy CIT
(2004) 271 ITR 564 = (2005) 193 CTR 55=
143 Taxman 226=186 Taxation 630(SC)
(14) Employment of 10 or more workers ‐ Payment on the basis of
job work ‐ Tribunal found that the workers were working at
the factory premises ‐ Assessee was conbtrolling not only
the work done by those persons but also the manner of
doing the work ‐ It could not be said that these persons were
not employees simply because they were paid on piece rate
basis or job work basis ‐ Tribunal applied the correct test to
render the aforesaid finding that the assessee had
employed 10 or more persons in the manufacturing process ‐
Assessee entitled to deductions.S.80 HH,80‐I
Narania & Co. (V.B) , CIT v/s.
(2001)171 CTR 416 = 252 ITR 884(Guj)
(d) s. 80 HHC
(1) Assessment year 1991‐92 – Whether profit should be reduced by
amount of carried forward depreciation and investment
allowance before allowing deduction under section 80HHC – Held,
yes
Mahalaxmi Fabric Mills Ltd. v/s. Asstt. CIT
(2009) 176 Taxman 153 = 309 ITR 63= 129 Taxation 72 =(2008)
9 DTR 70 (Guj)
(2) Profits derived from export–No export made ‐ Duty drawback
and cash compensatory support ‐ Words “business profits”
in the formula given in s. 80HHC(3) include cash
compensatory allowance and duty drawback and, therefore,
deduction under s. 80HHC is allowable in respect of duty
drawback and cash compensatory support received by the
assessee during the relevant accounting year even though
no export was made by the assessee during the relevant
year.
Desraj B. v/s. CIT
(2008)216 CTR 348=301 ITR 439 = 171 Taxman 481=7 DTR 54(SC)
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130
(3) Filing of audit report ‐ Report not filed along with return –
Deduction under s. 80HHC cannot be dented simply because
the report of the accountant in the prescribed form is not
attached with the return, but it is produced before the AO
during the course of assessment proceedings – Assessee
having made the claim for deduction for the first time during
the course of assessment proceedings by filing audit report,
Tribunal was justified in directing the AO to consider the
claim of the assessee under s. 80HHC on merits.
VXL India Ltd., ITO v/s.
(2008) 219 CTR 242 = 207 Taxation 553 = 12 DTR 203(Guj)
(4) Assessment year 1990‐91 ‐ Formula for deduction simplistic –
Basis – Proportion of business profits irrespective of actual
profits by export ‐ Income tax Act, 1961, s. 80HHC(3)(b) ‐ CBDT
Circular No. 564, dated July 5, 1990.
Mysodet P. Ltd. v/s. CIT
(2008) 305 ITR 276 = 174 Taxman 221=12 DTR 265=
(2009) Taxation 39(SC)
(5) Computation of business profits ‐ Business profits whether will
include receipts by way of brokerage, commission, interest,
service charges etc. – Law amended with effect from April 1, 1992
to the effect that business profits will not include such receipts –
Prospective and not retrospective – Income‐tax Act, 1961, s.
80HHC – CBDT Circular no. 621 dated December 19, 1991.
K.K Doshi and Co. v/s. CIT
(2008) 297 ITR 38 = 215 CTR 114 = 171 Taxman 12(SC)
(6) Special deduction – Supporting manufacturer – Selling goods to
Export House or Trading House in respect of which Export House
or Trading House issues certificate – Scope of deduction –
Premium paid by Export House or Trading House to supporting
manufacturer on f.o.b value – Integral part of turnover of
supporting manufacturer – Includible in profits of business and
eligible for deduction – Restriction that receipt should be in
shape of convertible foreign exchange applies to direct exporter
and not supporting manufacturer selling to Export House or
Trading House –
Baby Marine Export, CIT v/s.
(2007) 290 ITR 323= 160 Taxman 160 = 209 CTR 183 =
199 Taxation 274 (SC)
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131
(7) Special exemption – Object – To provide incentive for
promotion of exports – “Total turnover” – Formula adopted
in statute for determination – Exclusion from total turnover
of brokerage, commission, interest, rent etc. – Excise duty
and sales tax also of same nature – Are to be deducted.
Lakshmi Machine Works, CIT v/s.
(2007) 290 ITR 667 = 160 Taxman 404 = 210 CTR 1 =
200 Taxation 254 (SC)
(8) Special deduction – Determination of profits – Section 80AB
specifying that profits are those as computed in
accordance with other provisions of Act can be applied –
Unabsorbed business losses of earlier years to be set off –
Income Tax Act, 1961, ss. 72, 80AB, 80HHC.
Shirke Construction Equipment Ltd., CIT v/s.
(2007)291 ITR 380 = 210 CTR 159 =161 Taxman 212 =
201 Taxation 398 (SC)
(9) Allowability ‐ Export out of India – Deduction under s.
80HHC is allowable only in case of export of goods or
merchandise out of India, and not from any other country.
Dhall Enterprises & Engineers (P) Ltd., CIT v/s.
(2007) 207 CTR 729 = 198 Taxation 181 = 162 Taxman 114
= 295 ITR 481 (Guj)
(10) Special exemption – “Total turnover” – Exclusion from total
turnover of brokerage, commission, interest, rent etc. – Excise
duty and sales tax also of same nature – Are to be excluded –
Income Tax Act, 1961, s. 80HHC(3)(b).
Chatapharma (India) (P) Ltd,, CIT v/s.
(2007)292 ITR 641 = 211 CTR 83 = 162 Taxman 455 = 201
Taxation 375 (SC)
(11) Special deduction from profits – Scope of deduction –
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Deduction is only of positive profit earned – Exports of both
self manufactured goods and trading goods to be taken into
account‐No profit earned by assessee – Assessee not entitled
to benefit of deduction – Meaning of “profit” – Income tax Act,
1961, ss. 80AB, 80HHC(3)(c)(i), (ii).
Moosa (A.M) v/s. CIT
(2007) 294 ITR 1 = 163 Taxman 741 = 212 CTR 89(SC)
(12) Computation ‐ Loss from export business – For computation
of deduction under s. 80HHC(3)(c), losses suffered by the
assessee in the export of trading goods are to be set
off/adjusted against profits from export of manufactured goods
and vice versa and the assessee would not be entitled to
deduction if after such adjustments/set off the net figure is a
loss.
Ravindranathan Nair K., CIT v/s.
(2007)213 CTR 227 = 165 Taxman 282= 295 ITR 228(SC)
(13) Computation of total turnover ‐ Processing charges – Processing
charges derived by the assessee exporter by processing
cashewnuts for other exporters being independent income, 90
per cent thereof had to be reduced from the gross total
income but the same being and important component of
business profits, had to be included in the total turnover in the
formula given in s. 80HHC(3).
Ravindranathan Nair K., CIT v/s.
(2007) 213 CTR 227 = 165 Taxman 282= 295 ITR 228 (SC)
(14) Special deduction – Computation of special deduction – Meaning
of “turnover” ‐ Income earned by processing goods belonging
to third persons – Is part only of gross total income and not
export turnover for purposes of deduction – Income tax Act,
1961, s. 80HHC(3) (as it stood in the assessment year 1993‐94) ‐
Special deduction – Deduction only if positive profits earned –
Export of both self manufactured and trading goods to be
taken into account – No profit earned by assessee ‐ Assessee
not entitled to any deduction.
Max India Ltd., CIT v/s.
(2007) 295 ITR 282 = 213 CTR 266 = 9 RC 710
(2008) 166 Taxman 188 = 204 Taxation 1(SC)
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133
(15) Special deduction – Computation of special deduction – interest
and sales tax set off assessed as business profits – Amounts
includible for computation of special deduction – Income Tax
Act, 1961, s. 80HHC
Alfa Laval (India) Ltd. , CIT v/s.
(2007)295 ITR 451 = (2008) 170 Taxman 615(SC)
(16) Special deduction – Assessee engaged in business of export of
trading goods ‐ Deriving income from export of trading goods
and also from export incentives, commission, interest, etc. –
Computation of deduction – Ten per cent of expenses for
earning incentives, commission, interest, etc. – Deductible –
Income Tax Act, 1961, s. 80HHC.
Hero Exports V/s. CIT
(2007) 295 ITR 454 = 213 CTR 291 =165 Taxman 445 (SC)
(17) Total turnover – Whether Sales tax & excise duty form part of the
turnover – Held No. (Deduction under section 80HHC – Total
Turnover – Sales Tax & Excise Duty).
Catapharma (India) Pvt. Ltd., CIT v/s.
(2007)201 xation 375(SC)
(18) Income from manufacture and export of tea ‐ Stage of granting
deduction under s. 80HHC ‐ Deduction under s. 80HHC is to
be allowed after apportionment of income from cultivation
and manufacture of tea under r. 8(1) i.e from 40 per cent
profits on sales taxable as business income.
Willamson Financial Services , CIT v/s.
(2007) 213 CTR 612 = 165 Taxman 638 =(2008) 297 ITR 17=
204 Taxation 89 (SC)
(19) Assessee exporting goods manufactured by itself and also trading
goods of supporting manufacturers – Profit in export of goods
manufactured by assessee –Loss in export of trading goods – Net
loss from export of goods – Assessee not entitled to deduction –
Also disclaimer in favour of supporting manufacturer ‐ Only for
passing on the deduction of export house ‐ Export house cannot
disclaim where it has incurred loss –
IPCA Laboratory Ltd. v/s. Dy. CIT
(2004)266 ITR 521 = 135 Taxman 594 = 187 CTR 513=
181 Taxation 2 (SC)
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(20) Exporters – Assessee was an exporter of granite ‐ Its claim was that
granite was cut and polished before export and, therefore, it was
entitled to deduction under section 80HHC in respect of profits
from export business ‐ High Court rejected assessee’s claim – On
perusal of Circulars of years 1994 and 1995, it was seen that
benefit of section 80HHC was available to cut and polished granite
only with effect from 1‐4‐1991 by virtue of insertion of item (x) in
Twelfth Schedule to Act – In view of aforesaid, benefit of section
80HHC could not be granted to assessee for assessment year in
question.
Gem Granites v/s. CIT
(2004) 141 Taxman 528 = 192 CTR 481 = 271 ITR 322 =\
(2005) 185 Taxation 5(SC)
(21) Counter sales in convertible foreign exchange involving customs
clearance – Profits qualify for special deduction.
Silver and Arts Palace, CIT v/s.
(2003) 259 ITR 684 = 180 CTR 309=129 Taxman 56 =
174 Taxation 742(SC)
(22) Deductions ‐ Exporters – Assessment year 1984‐85 – Revenue
contended that in view of provisions of section 80AB, Tribunal was
in error in allowing deduction under section 80HHC against
income from capital gains while assessee had no profit from
export business ‐ Section 80AB does not override provisions of
section 80HHC ‐ Since section 80HHC requires deduction to be
made from total income of assessee and capital gains form part of
income to be included for purpose of ascertaining total income,
Tribunal had rightly allowed deduction under section 80HHC.
Arvind Mills Ltd. , CIT v/s.
(2003) 131 Taxman 556(Guj)
(e) s. 80HH and 80‐I
(1) Ship Breaking ‐ Manufacture or production ‐ Business of
ship breaking – Ship breaking activity gave rise to the
production of a distinct and different article hence
eligible for deduction under ss. 80HH and 80‐I.
Vijay Ship Breaking Corpn. & Ors. V/s. CIT
(2008) 219 CTR 639 = 175 Taxman 77=(2009)208 Taxation
675 = 14 DTR 74 (SC)
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135
(2) Manufacture or production ‐ Conversion of jumbo rolls of
photographic films into small flats and rolls in desired sizes –
Amounts to manufacture or production eligible for deduction
under ss. 80HH and 80‐I.
India Cine Agencies v/s. CIT
(2008)220 CTR 223 = 175 Taxman 361=15 DTR 121
(2009)308 ITR 98 (SC)
(3) Computation for ‐ Special deduction under section 80‐I –
Computation of special deduction – Profits and gains
not to be reduced by special deduction admissible under
section 80HH – Income tax Act, 1961, ss. 80HH, 80‐I.
Venus Electricals, CIT v/s.
(2008)304 ITR 347 = 205 Taxation 282(Guj)
(4) Industrial undertaking ‐ Special deduction – Miscellaneous
income from sale of empty containers, whether qualifies for
deduction – Income tax Act, 1961, ss. 80HH, 80‐I, 260A.‐ Held,
no.
Core Health Care Ltd., Deputy CIT v/s. Deputy CIT v/s.
(2008) 298 ITR 194 =167 Taxman 206 =204 Taxation 107=
3 DTR 49 (SC)
(5) Profits from all units to be taken. ‐ Special deductions –
Allowance to be made only after computing “gross total
income” – Assessee having two industrial units, one in oil and
the other in chemicals – Assessee making profits in chemical
unit and incurring loss in oil unit ‐ Computation of “gross total
income” – Gross total income should include both profit in
chemical unit and loss in oil unit – If result is nil, assessee not
entitled to special deductions – Income tax Act, 1961, Ch. VI‐A,
ss. 80A, 80B, 80B(5), 80HH, 80‐I.
Synco Industries Ltd. V/s. Assessing Officer(Income Tax)
(2008)299 ITR 444 = 215 CTR 385 = 168 Taxman 224=
4 DTR 203 (SC)
(6) Industrial undertaking – Special deduction under section
80‐I – Computation of special deduction – Profits and
gains not to be reduced by special deduction admissible
under section 80HH.
Venus Electricals, CIT v/s.
(2008)304 ITR 347 = 205 Taxation 282(Guj)
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136
(7) Deduction ‐ Industrial Undertaking ‐ Special deduction under
section 80‐I – Condition precedent – Employment of specified
number of employees – Workers engaged on contract labour
basis – Finding that assessee controlled the work and the
manner of doing it – Workers were employees for purposes
of section 80‐I – Income Tax Act, 1961, s. 80‐I.
Prithviraj Bhoorchand, CIT v/s.
(2006) 280 ITR 94 = 200 CTR 82 = 152 Taxman 372 =
192 Taxation 301 (Guj)
(8) Deductions‐ What amounts to Manufacture ‐Unwinding,
cutting and slitting of jumbo rolls of tissue papers into
smaller size – Jumbo rolls of tissue papers are cut into
various shapes and sizes so that they can be conveniently
used as table napkins, facial tissues, toilet rolls etc –
However, the characteristics and end use of the tissue
paper in the jumbo rolls and the characteristics and end
use of the toilet rolls, table napkins and facial tissues
remain the same – No new product emerges on winding,
cutting/slitting and packing ‐ Thus, there is no
manufacture on first principles – Slitting and cutting of
toilet tissue paper or aluminium foil has not been
treated as a manufacture by the legislature and
therefore, s. 2(f) also not applicable – Merely because
tissue paper in the jumbo roll of size exceeding 36 cms.
Falls in one entry and the toilet roll of a width not
exceeding 36 cms. Falls in a different entry, it cannot be
presumed that the process of slitting and cutting and
slitting of jumbo rolls of aluminium foils amount to
manufacturing – Also, value addition without any change
in the name, character or end use cannot constitute
criteria to decide what is “manufacture”.
S.R Tissues (P) & Anr., CCE v/s.
(2005) 197 CTR 437(Guj)
(9) Computation – Sale of goods to another division
(undertaking) of same group – Allocation of indirect expenses
– In cases where an industrial undertaking transfers goods to
any other business carried on by the assessee, the
consideration has to be at the market value, and if it is not
so, the AO can substitute the figure of consideration for the
purpose of computing deduction – Therefore, it is not
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possible to accept the contention that merely because the
entire production of the eligible division was sold to the main
division of the assessee, there could be no occasion for
disturbing the figure of consideration – Hence, AO was
justified in allocating the indirect expenses of the assessee
company to the eligible division to arrive at the profits and
gains of the said division for the purpose of computing
deduction under ss. 80HH and 80‐I.
Profits of the business – Scope of explanation (baa) to s.
80HHC – Once the sums or receipts of the nature specified in
sub – cl. (1) of cl. (baa) of the explanation to s. 80HHC are
included while computing profits and gains of business then
all such sums or receipts are to be reduced to the extent of 90
per cent from the profits of the business and not simply one
of them.
Alembic Chemical Works Ltd. v/s. Dy. CIT
(2003)185 CTR 389 = 133 Taxman 833(Guj)
(10) Manufacture or Production ‐ Business of ship breaking – There
is nothing whatsoever in the process of ship breaking activity
which can be termed as manufacture or production of any
article or thing – Dismantled material already exists as a
component of old ship ‐ Neither the process of extracting
steel plates from nor the process of cutting extracted steel
plates for convenient disposal is an activity of manufacture or
production of such material ‐ Merely because ship breaking is
considered as an industry, it would not be an industry
engaged in manufacture or production of any article or thing –
Ship breaking activities do not result in bringing into
existence any new article or thing ‐ Assessee engaged in the
business of ship breaking was not entitled to deduction
under ss. 80HH and 80‐I. – The decision is pending in appeal
before the Supreme Court ‐ Further by Taxation Laws
(amendment) ordinance 2003 retrospectively from 1‐4‐1991
addition of “business of ship breaking “ in explanation 1 in
section 10(15), is made after item (i) .
Vijay Ship Breaking Corpn. , CIT v/s.
(2003) 182 CTR 134 =261 ITR 113=129 Taxman 120=
175 Taxation 233(Guj) – now reversed by Supreme Court in
(2008) 219 CTR 639(SC) = 175 Taxman 77(SC)
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(f) s. 80‐I
(1) Assessment under s. 158BC – In the light of provisions of s.
158BB as amended by the Finance Act, 2002 retrospectively
w.e.f 1st July, 1995, no fault can be found with the impugned
order of the Tribunal holding that the assessee is entitled to claim
deduction under s. 80‐I or s. 80‐IA in block assessment.
Suman Paper & Boards Ltd., CIT v/s.
(2009) 221 CTR 781(Guj)
(2) Whether in view of law laid down in CIT v/s. Prithviraj
Bhoorechand (2006) 280 ITR 94/152 Taxman 372(Guj) where
more than twenty persons were working under control of
assessee in his industrial undertaking Tribunal was right in
directing department to allow deduction under provisions of
section 80‐I – Held, yes.
Prithviraj Bhoorchand, Asst. CIT v/s.
(2009)176 Taxman 156(Guj)
(3) Allowability ‐ Transfer of old machinery or plant to new business
– Assessee having installed two new assembly lines for
manufacture of new types of dry cell batteries and started no
new business, cl. (ii) of sub‐s. (2) of s. 80‐I was not applicable, and
further value of new machinery installed by Rs. 1.04 crores as
against existing machinery worth Rs. 5 lacs used for common
facilities, deduction under s. 80‐I was allowable to assessee.
Lakhanpal National Ltd., CIT v/s
(2008) 215 CTR 503 = 205 Taxation 232 172 Taxman 301 =
304 ITR 365 = 4 DTR 129(Guj)
(4) Computation – Deduction under s. 80HH ‐ In the absence of
any clarificatory words in s. 80‐I, like those found in the
bracketed portion in s. 80J, the deduction admissible under
s. 80HH is not required to be reduced from the profits and
gains of business while computing the profits for the
purpose of deduction under s. 80‐I.
Amod Stamping, CIT v/s.
(2005) 194 CTR 158= 185 Taxation 339=274 ITR 176(Guj)
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(5) Profits and gains derived from industrial undertaking – Excess
recovery over expenditure on advertisement from consignee
distributors – Consignee distributors primarily liable to incur
advertisement expenditure – However, under an agreement, the
assessee undertakes work of issuing advertisements and towards
expenditure incurred by the assessee, recoveries are effected
from the consignee distributors ‐ Excess recoveries over
expenditure on this account – Finding of Tribunal that recoveries
are directly related to net sales of the product by the consignee
distributors ‐ Excess receipts therefore qualify for computing
deduction under s. 80‐I.
K. Kacharadas Patel Specific Family Trust v/s. CIT
&
K. Kacharadas Patel Specific Family Trust, CIT v/s.
(2005) 195 CTR 577 = 189 Taxation 608 (Guj)
(6) Also see s. 80HH
(g) s. 80‐IA
(1) Hotel –Special deduction section 80‐IA(4)(iii) ‐ Scope of
provisions – Hotel in a place of piligrimage – Hotel granted
certification by prescribed authorities – Income tax authorities
has no jurisdiction to decide on basis of his own criteria that
assessee not entitled to special deduction under section 80‐IA
– Income Tax Act, 1961, s. 80‐IA(4)(iii) – Income Tax Rules,
1962, r. 18BBC.
Gujarat JHM Hotels Ltd. v/s.
Director General of Income Tax (Exemption).
(2008)305 ITR 386 = 207 Taxation 567 = 222 CTR 132 =
(2009) 18 DTR 93 (Guj)
(h) s. 80J
(1) Profits and gains derived from industrial undertaking – Cash
compensatory support (CCS) – Cash compensatory support
is “attributable to”, but not “derived from” the industrial
undertaking and, therefore, it could not be included in
profits and gains of the business for the purposes of
deduction under s. 80J.
Profits and gains derived from industrial undertaking – Duty
drawbacks intended to reduce the cost of production–Same
being integral part of pricing of goods, is part of the cost of
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production of the industrial undertaking, hence derived from
industrial undertaking and eligible for deduction under s. 80J.
India Gelatine & Chemicals Ltd., CIT v/s.
(2005) 194 CTR 492=145 Taxman 303 =275 ITR 284 =
188 Taxation 50 (Guj)
(2) Profits and gains from new industrial undertakings etc. – In view
of decision in case of CIT v/s. Alcock Ashdown & Co. Ltd. (1997)
224 ITR 353/90 Taxman 521 (SC), work in progress is includible in
computation of capital employed for granting relief under
section 80J.
Mehsana District Co‐op. Milk Producers Union Ltd. , CIT v/s.
(2003) 130 Taxman 281 (Guj)
(3) Profits and gains from new industrial undertakings etc. – Cost of
plant and machinery under erection as also cost of building
under construction are to be included in capital base for purpose
of deduction under section 80J.
S. G Chemicals & Pharmaceuticals Ltd., CIT v/s
(2003) 130 Taxman 284(2002)175 CTR 618=169 Taxation 679=
258 ITR 109 (Guj)
Also see under heading “New Industrial Undertaking”.
(i) s. 80L
(1) Interest on securities, dividends, etc. – Assessee’s claim for
deduction under section 80L on interest income from compulsory
deposit was rejected – Assessee had earned certain dividend
income also – For earning that, it had made borrowings and paid
interest on that ‐ In relation to dividend income, there was
deficit as worked out under section 56 read with section 57 –
According to revenue, interest income on compulsory deposit had
to be set off against such deficit in relation to dividend account
and if net figure was negative, assessee could not claim any
deduction under section 80L in view of provisions of section 80AB
‐ Since no expenditure had been incurred for earning interest
from compulsory deposits, there was no question of reducing
figure of interest income – Such exercise as suggested by revenue
was unwarranted and Tribunal was right in allowing assessee’s
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claim under section 80L in respect of interest income earned on
compulsory deposit .
Apoorva Shantilal Shah, CIT v/s.
(2003) 128 Taxman 525 = (2002) 255 ITR 390=174 CTR 612=
169 Taxation 51(Guj)
(2) Discretionary Trust – Status of individual – Special deduction
under section 80L for individuals – Available – Trust ‐ Interest
paid to beneficiaries ‐ Deductible.
Harjivandas Juthabhai Zaveri & Anr., Dy. CIT v/s.
(2002) 258 ITR 785 (Guj)
(j) s. 80‐O
Foreign Project – Exemption in regard to profits ‐ Provision that
profits comprised in execution of foreign project will not qualify
under any other provision – Valid and constitutional ‐ Exemption
clearly referable to s. 80‐O not denied ‐ Income Tax Act, 1961, ss.
80‐O, 80HHB(5) – Constitutional of India, Arts. 14, 19(1).
Continental Construction Ltd. v/s. Union of India
(2003) 264 ITR 470 = (2004) 186 CTR 88=178 Taxation 395(SC)
(k) s. 80P
CO‐OPERATIVE SOCIETY
(1) Deduction under s. 80P(2)(a)(i) – Business of banking Interest
received from members of society – Matter regarding exemption
under s. 80P(2(a)(i) for interest received from members of the
society remanded for reconsideration.
Ponni Sugars & Chemicals Ltd. & Ors., CIT v/s.
(2008) 219 CTR 105 = 174 Taxman 87 = 306 ITR 392 = 13 DTR 1=
(2009) 208 Taxation 59(SC)
(2) Profits and gains of banking business – Co‐operative bank
carrying on banking business – Statutorily required to place
part of its funds in approved securities – Income from such
securities – Deductible under section 80P(2).
Nawanshahar Central Co‐operative Bank Ltd., CIT v/s.
(2007) 289 ITR 6 = 208 CTR 438 = 160 Taxman 48 (SC)
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142
(3) Sale of articles intended for agriculture ‐ Gross or net income
‐ In the case of indivisible business, in the first instance all
common expenditure incurred wholly and exclusively for the
purposes of the business including the expenditure in relation
to the specified activities are to be deducted under s. 37(1) –
Activities being one and indivisible apportionment is not
permissible even on notional basis ‐ While interpreting s. 80P
a liberal construction should be made so as to achieve the
object of the provision Jamnagar Jilla Sahakari Khorid
Vechan Sangh Ltd., CIT v/s.
(2006) 201 CTR 243 = 283 ITR 116 = 153 Taxman 363(Guj)
(4) Business of banking – Interest on investments made out of
voluntary reserves – The direction of the Supreme Court in
Mehsana District Central Co‐operative Bank’s case can only
mean ascertainment of utilization of net income of earlier
years, which forms part of the funds which are invested and
given the nomenclature of voluntary reserves – It is not
possible to restrict the scope of business of banking to the
definition of banking under s. 5(b) of the Banking
(Regulations) Act – Clause (a) of s. 6(1) specifies numerous
activities in which a banking company may engage – Term
“investment” used in s. 5(b) has to be read in a sense broad
enough to denote placing of property in business so that it will
be safe and yield a profit ‐ In case of a society carrying on
business of banking, it is permissible to make specified
investments as provided in s. 71 of Gujarat Co‐operative
Societies Act including in any of the modes specified in s. 20
of the Indian Trusts Act without any upper limit once the
statutory requirement of reserve fund as stipulated in s. 67(2)
is satisfied – All investments, surplus otherwise are essential
and conducive to the promotion or advancement of the
business of banking ‐ Therefore, interest earned on
investments made by the assessee society in the course of
business of banking is attributable to business of banking
and deduction under s. 80P(2)(a)(i) is allowable on such
income.
Baroda Peoples Co‐operative Bank Ltd., CIT v/s.
(2005) 198 CTR 1 =149 Taxman 509 = 280 ITR 282(Guj)
(5) Constitutional validity of amendment made by IT (Second
Amendment) Act, 1998 – Exemption confined to societies marketing
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143
agricultural produce grown by their members – Clear effect of the
amendment is that s. 80P(2)(a)(iii) must be read as if the substituted
phrase “grown by” from the date the section was introduced ‐ In
making the impugned amendment the legislature does not
“statutorily overrule” the decision in Kerala Co‐operative Marketing
Federation Ltd & Ors. V/s. CIT (1998) 147 CTR(SC) 28 : 1998 (5) SCC
48 as contended by the appellant – There was hardly any
retrospectivity but a continuation of status quo ante as the law
declared in Assam Co‐operative Apex Marketing Society v/s. Addl.
CIT (1993) 113 CTR (SC) 58 : 1994(Supp) 2 SCC 96 held the field till
1998 when it was reversed ‐ Further, the amendment did not
authorize the Revenue authorities to reopen time barred
assessment – Amendment is therefore constitutionally valid.
National Agricultural Co‐operative Marketing Federation of India
Ltd. & Anr. V/s.Union of India & Ors.
(2003) 181 CTR 1 = 260 ITR 548 =128 Taxman 361 =174 Taxation 409(SC)
(6) Special Deduction ‐ Co‐operative Society engaged in banking
business ‐ Interest earned from funds utilized for statutory
reserves ‐ Income from hiring safe deposit vaults ‐ Deductible ‐
Interest from utilization of voluntary reserves ‐ Deductible if funds
utilized in course of ordinary banking business ‐ Income Tax Act,
1961, s. 80P(2)(a)(i) ‐ Gujarat Co‐operative Societies Act, 1961, s.
67(2) ‐ Banking Regulation Act, 1949, s. 6(1)(a).
Mehsana District Co‐op. Bank Ltd. v/s. ITO
(2001) 251 ITR 522(SC)
(7) Special Deduction ‐ Banking Business ‐ Total reserves ‐ Interest on
investments from‐Not deductible –Income Tax Act, 1961, s.
80P(2)(a)(i).
Mehsana District Co‐op. Bank Ltd. v/s. ITO
(2001) 251 ITR 520(GUJ) Now over ruled by 251 ITR 522(SC)
(8) Scope of ‐ Co‐operative society engaged in banking business ‐
Interest arising from investment made out of reserve fund to
enable it to carry on banking business ‐ Is income from banking
business ‐ Deduction not restricted to income derived from working
or circulating capital ‐
Karnataka State Co‐operative Apex Bank, CIT, v/s.
(2001) 251 ITR 194(SC)
(9) Banking business – Interest on securities – Subsidies from
government – Dividend – Are business income – Deduction available
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144
– Supreme Court ‐ Earlier decisions on these points ‐ Do not require
reconsideration.
Ramanthapuram Dist. Co‐op. Central Bank Ltd., CIT v/s.
(2002) 255 ITR 423 = 175 CTR 297 = 123 Taxman 222(SC)
(10) Deduction under s. 80P(2)(a)(i) – Providing credit facility to members
– Hire sale of vehicles – Assessee a co‐operative Society, purchasing
auto rickshaws and reselling them to its members on hire purchase
terms – This activity cannot be said to provide “credit facilities” to
its members – Provisions of s. 80P(2)(a)(i) not applicable.
Madras Auto Rickshaw Drivers v/s. CIT
(2002) 173 CTR 77(SC)
(l) s. 80‐U
(1) Deduction – Only by revised return ‐ Return – Deduction claimed
after return filed ‐ No power in assessing authority to entertain
claim made otherwise than by way of revised return ‐
Goetze (India) Ltd. v/s. CIT
(2006)284 ITR 323 = 204 CTR 182= 157 Taxman 1=
195 Taxation 228 (SC)
(2) Blind or physically handicapped persons – Fact that person has
substantial income by itself cannot be a criterion for determining
whether disease or disability with which he is suffering has resulted
in reducing his capacity to gainful employment – Assessee suffered
from deafness to extent that he could not hear from a distance of
two‐three feet even with help of hearing aid – Assessee would be
entitled to relief under section 80U.
Narendra R. Oza, CIT v/s.
(2002) 257 ITR 466 = 175 CTR 621 = 169 Taxation 656
(2003) 130 Taxman 287(Guj)
(m) s. 80VV
(1) Expenses in connection with income tax proceedings ‐
Applicability of s. 80VVA, the expenditure incurred in connection
with the legal proceedings in respect of the tax liability under the
Act is to be allowed from the balance of 30 per cent of the income
of the assessee company.
Ahmedabad New Cotton Mills Co. Ltd., CIT v/s.
(2001) 171 CTR 495(GUJ)
(2) Mercantile system of accounting ‐ Expenditure incurred in respect of
certain proceedings before Income Tax Authorities ‐ Expenditure
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145
incurred not actually paid during the relevant year ‐ Assessee
entitled to deduction under section 80VV even though no payment
was made in the relevant year if he follows mercantile system –
DAYAL B. Mistry , CIT v/s.
(2001)252 ITR 571 = 165 TAXATION 753(GUJ)
34. DEPRECIATION
(a) ADDITIONAL DEPRECIATION
(1) Computers – Meaning of office premises in section 32 – Computers
used for data processing – Entitled to additional depreciation –
Income Tax Act, 1961, s. 32(1)(iia).
Statronics & Enterprises (P) Ltd., CIT v/s.
(2007)288 ITR 455 = 207 CTR 96= 196 Taxation 198 =
165 Taxman 153 = (2008) 3 DTR 343 (Guj)
(2) Air conditioners and fans in a clinic – Entitled to additional
depreciation.
Nathubhai H. Patel, CIT v/s.
(2006)201 CTR 102 = 154 Taxman 117 = 193 Taxation 114 =
285 ITR 67 (Guj)
(b) ACTUAL COST
(1) Pre‐commencement expenses ‐ Assessee ‐ company filed an affidavit
asserting that all expenditure except some items were incurred for
setting up of the plant ‐ CIT(A) misdirected himself in relying upon
a portion of the affidavit where certain items were expressly
excluded while not believing the other portion of the affidavit
wherein the remaining expenses were stated to be incurred for
setting up of the plant ‐ None of the authorities cross examined
the deponent ie. the director ‐ It was not open to the Revenue to
challenge the correctness of the affidavit ‐ It is not clear whether
the capitalised expenditure includes depreciation ‐ Tribunal directed
to ascertain the factual position ‐ Whole of the expenditure except
the depreciation, if any capitalised by assessee was includible in
the actual cost of plant.
Glass Lines Equipments Co. Ltd. v/s. CIT
(2001) 170 CTR 470 = 119 TAXMAN 813(GUJ)
(2) Subsidy from Government – Depreciation was admissible on entire
cost of plant and machinery despite the fact that 30 per cent of the
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146
value of plant and machinery was received by way of subsidy from
the Government.
Mehsana District Co‐op. Milk Producers Union Ltd. v/s. CIT
(2002) 175 CTR 612 = (2003) 132 Taxman 50 (Guj)
(3) Investment allowance – Actual cost – Government subsidy not
deductible in computing actual cost.
Swastik Sanitary Works Ltd. , CIT v/s.
(2006) 286 ITR 544 = 205 CTR 517(2007) 197 Taxation 324
(Guj)
(c) ALLOWABILITY
(1) Lease of electrical equipment – Rent received from State Electricity
Board taxed as business income – Tribunal finding that transaction
genuine and allowing depreciation – Findings of fact – Income Tax
Act, 1961, s. 32.
Gujarat Gas Co. Ltd., CIT v/s.
(2009) 308 ITR 243 = 222 CTR 297 = 19 DTR 175(Guj)
(2) Allowance/rate of – In case of plant and machinery whose cost
does not exceed Rs. 5,000/‐ third proviso to section 32(1)(ii)
would not be applicable since such assets are covered
specifically under first proviso to said section and entire actual
cost has to be allowed as a deduction, subject to assessee
fulfilling all other requisite conditions – Held, yes.
Dhall Enterprises & Engineers (P) Ltd., CIT v/s.
(2006)150 Taxman 499 = 201 CTR 107 = 193 Taxation 587=
287 ITR 435 (Guj)
(3) Firm dissolved and business taken over by one partner during
the previous year ‐ Full depreciation on assets claimed by the
partner – Assessee, the dissolved firm, also entitled to full
depreciation ‐ Relevant provisions do not circumscribe the
rates of depreciation in case the asset has been owned and
used for the purpose of business or profession for a part of
the previous year – Depreciation was allowable if the assets
were used for the purpose of business or profession at any
time during the relevant previous year – There is nothing to
show that the assessee should remain the owner of the asset
in question for the entire previous year – Further, adjustment
of rights of the partners in a dissolved firm does not amount
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147
to a transfer nor it is for a price and hence it is not a case of
sale of assets of the partnership firm – Accordingly, provisions
of s. 34(2)(ii) would not be applicable.
Fluid Controls Mfg. Co., CIT v/s.
(2005) 196 CTR 1 = 147 Taxman 139 = 189 Taxation 601 (Guj)
(4) Assessee was entitled for depreciation on entire cost of plant and
machinery, including 30 per cent of value of plant and machinery
received by way of subsidy from Government.
Mehsana District Co‐op. Milk Producers Union Ltd. , CIT v/s.
(2003) 130 Taxman 281 (Guj)
(5) Allowability ‐ Conversion of proprietary business into partnership
firm ‐ Sec. 34(2)(ii) cannot be invoked to disallow the claim for
depreciation against profits from proprietary business ‐ Sec. 34(2)
(ii) envisages denial of claim for depreciation only in the cases
where the assets are sold, discarded, demolished or destroyed ‐
Assets in question were neither discarded, demolished or
destroyed ‐ There is no sale when the assets of the proprietary
business are brought as capital contribution in the partnership
firm ‐ Claim of the assessee for depreciation rightly upheld.
Ramlubhaiya R. Malhotra, CIT v/s.
(2001) 169 CTR 435(GUJ)
(6) When available – Subsidy ‐ Plant and machinery received as
subsidy from Government – Depreciation admissible on 30 per cent
of value of such plant and machinery.
Mehsana District Co‐op. Milk Producers Union Ltd. v/s. CIT
(2002) 256 ITR 322 = 166 Taxation 339 = 121 Taxman 689(Guj)
(7) Lunch room, extension of canteen and partition wall – Entitled to
depreciation.
Gujarat State Fertilizer Co., CIT v/s.
(2002) 255 ITR 294 = 174 CTR 318 = 123 Taxman 651 (Guj)
(d) BALANCING CHARGE
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(1) Acquisition of assessee’s banking undertaking by Government –
Sec. 4(2) is not attracted where assessee’s entire undertaking
is acquired and compensation is paid.
PNB Finance Ltd. v/s. CIT
(2008) 220 CTR 110 = 307 ITR 75 = 175 Taxman 242=
15 DTR 47=11 RC 607 = (2009) 208 Taxation 370 (SC)
(e) CAR
Motor Car – One‐seventh portion of depreciation not disallowable.
Dinesh Mills Ltd. V/s. CIT
(2004)268 ITR 502 (Guj)
(f) CHANGE OF A/C. YEAR
Allowance/rate of – Assessee company who was following financial
year as its accounting year up to assessment year 1981‐82, made a
request to change accounting period so as to end on 31st August –
Assessing Officer granted request subject to condition that no
depreciation claim would be allowed for five months, i.e for
assessment year 1982‐83 – Assessing Officer was not justified .
Electric Control Gear Ltd., CIT v/s.
(2003) 129 Taxman 722 = 183 CTR 540 = 176 Taxation 553
(2004) 266 ITR 338 (Guj)
(g) COMPUTATION
Change in previous year – Previous year longer than twelve months –
Law applicable – Effect of substitution of rule 5 with effect from 2‐4‐
1987 – Rule cannot override provisions of Act – Assessee entitled to
depreciation for entire period – Tribunal directed to decide issue
afresh – Income tax Act, 1961, s. 32 – Income tax Rules, 1962, r. 5.
Crown Products , CIT v/s
(2008) 304 ITR 106 == 7 DTR 385= (2009) 177 Taxman 266 (SC)
(h) EXTRA SHIFT ALLOWANCE
(1) Cinema theatre – Not a “plant” – Depreciation and extra shift
allowance applicable Income Tax Rules, 1962, Appex. I, item III(iv)
(prior to 2‐4‐1987).
A.B.A Sons, CIT v/s.
(2003) 264 ITR 469 = (2004) 186 CTR 77(SC)
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(2) Air conditioning plant ‐ Business of manufacture of artificial silk –
Even assuming that air conditioning plant was essential in the
manufacturing process carried on by the assessee and was a part
of integral or composite plant of the assessee, extra shift allowance
was not allowable on the air conditioning plant in view of specific
provisions contained in part I of Appendix I to the IT Rules.
Garden Silk Mills (P) Ltd., CIT v/s.
(2001) 170 CTR 450 = 252 ITR 804(GUJ)
(i) INITIAL DEPRECIATION
(1) Building for residence of low paid employees – Firm of
chartered accountants – Carries on a “profession “ ‐ Does not
carry on “business” – Not entitled to initial depreciation on
such building – Income tax Act, 1961, s. 32(1)(iv).
G.K Choksi & Co. v/s. CIT
(2007) 295 ITR 241 =165 Taxman 299 = 213 CTR 425 (SC)
(2) Initial depreciation allowed under s. 32(1)(v) – Though cl. (v)
appears in s. 32(1) which deals with depreciation, initial
depreciation under cl. (v) is not depreciation as understood in
the commercial circles, nor has the legislature treated the
same to be depreciation within the meaning of the provisions
of the Act – It is primarily in the nature of incentive – Once
this allowance does not bear the characteristics of
depreciation, it would not form part of depreciation actually
allowed so as to be deducted while computing the WDV ‐
Further, WDV as computed at the end of the immediately
preceding previous year becomes the starting point for the
purposes of computing depreciation allowable in the year in
question ‐ Any allowance which has not gone into
computation of WDV in any of the earlier years cannot be
brought into consideration while computing the taxable
income of the year under consideration – Thus, initial
depreciation granted in asst. yr. 1982‐83 cannot be brought
into computation of WDV for the asst. yr. 1985‐86 and could
not be deducted for the purposes of computation of WDV
despite the amendment made by the Finance Act, 1983.
Daudayal Hotels (P) Ltd., CIT v/s.
(2005) 199 CTR 556 (2006)282 ITR 132= 152 Taxman 389 =
192 Taxation 329 (Guj)
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(3) Initial depreciation under s. 32(1)(iv) ‐ Allowability to
professionals i.e chartered accountants ‐ Legislature has used both
the terms "business" and "profession" as having distinct meaning
and operating in specified situation for the purpose of computing
income specified in s. 28 ‐ Wherever the legislature intended that
a benefit of a particular provision should be available to both
'business' or 'profession' it has used the phrase 'business' or
'profession' or after using the said phrase in the opening portion of
the section not specified in relation to each individual sub section
or clause where the benefit of deduction is available to both
categories of assessees ‐ Provisions of s. 36 provide for almost
identical situation ‐ It is not possible to accept the contention that
the opening portion of s. 32(1) would govern the operation of all
clauses which follow ‐ Submission that the word "business"
occurring in cl. (iv) of s. 32(1) includes the term "profession" and the
benefit is available even to an assessee who employs specified
category of persons in profession cannot be accepted ‐ Second
limb of cl. (iv) is an inherent indicator that the deduction is
available only in relation to an assessee carrying on business ‐ It is
not possible for the Court to adopt an interpretation which would
render one portion of the same clause otiose for the purpose of
holding that the relief would be available to one class of
assessee under another portion of the same clause ‐ Assessee firm
of chartered accountants was not therefore entitled to initial
depreciation.
Choksi & Co.(G.K) v/s. CIT
(2001) 171 CTR 396 = 252 ITR 863 =( 2003) 127 Taxman 109 =
175 Taxation 222 (Guj)
(j) OWNERSHIP
Buildings not registered in favour of assessee ‐ Assessee having
acquired possession of factory and office buildings under an
agreement on payment of substantial amount is entitled to
depreciation thereon even though the buildings had not been
transferred in favour of assessee.
Deepak Nitrite Ltd. v/s. CIT
(2008) 220 CTR 390 = 206 Taxation 422 = 307 ITR 289= 175Taxman
230 = 7 DTR 313 (Guj)
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(k) PARTIAL DEPRECIATION
Block of assets ‐ Whether can be claimed – Provision omitted with
effect from April 1, 1988 – Supreme Court – Matter remanded to
High Court for fresh consideration – Income Tax Act, 1961, ss. 32(1),
Expln.5, 34(1).
United Phosphorous Ltd., Jt. CIT v/s.
(2008) 299 ITR 9 = 215 CTR 13 = 167 Taxman 261 =204 Taxation 114
= 3 DTR 61(SC)
(l) PLANT
(1) Ore shed – In view of clear finding that the ore shed situated within
the factory
premises performs the functions of the plant and is an integral part
thereof, it is eligible for depreciation as also extra shift allowance ‐
Amol Dicalite Ltd. , CIT v/s.
(2006)205 CTR 521 = 286 ITR 648=
(2007) 197 Taxation 330(Guj)
(2) Purchase of undertaking – Accrued and future gratuity liability
of vendor also taken over it was capital expenditure but not
capital asset covered by s. 32(1)(ii) or plant under s. 43(3) ‐
Hence purchaser has no right to depreciation on land – No
depreciation.
Hoogly Mills Co. Ltd. , CIT v/s.
(2006) 287 ITR 333 = 206 CTR 301=157 Taxman 347=
(2007) 196 Taxation 734(SC)
(3) Fencing ‐ Assessee not entitled to depreciation on fencing at the
rate of 10 per
cent applicable to plant.
Mehsana District Co‐op. Milk Producers Union Ltd. v/s. CIT
(2002) 175 CTR 612(Guj)
(4) Hotel building ‐ Not plant ‐ Not entitled to extra shift
depreciation allowance ‐
Abad Hotels India P. Ltd., CIT v/s.
(2001) 251 ITR 204 = 170 CTR 185 (SC)
(5) Theater building not "plant" ‐ Assessee not entitled to higher
depreciation on theatre ‐
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152
Raiban and Sons , CIT v/s.
(2001) 251 ITR 881 = 171 CTR 191 = 119 TAXMAN 1029(SC)
(6) Building ‐ Plant – Roads to be treated as building and not as plant –
Fencing cannot be treated as plants ‐ Are to be treated as building
and not as plant for the purpose of Depreciation.
Mehsana District Co‐op. Milk Producers Union Ltd. v/s. CIT
(2002) 256 ITR 322 =175 CTR 612= 166 Taxation 339 =
121 Taxman 689 = (2003) 130 Taxman 281 (Guj)
(m) RATE
(1) Business of running motor vehicles on hire – User of trucks in
the business of transportation is the test for allowing higher
depreciation under Item III(2)(ii) of Appendix 1 to IT Rules –
Matter having not been examined from the point of view
whether trucks were run on hire, matter remanded for fresh
consideration.
Gupta Global Exim (P) Ltd., CIT v/s.
(2008) 216 CTR 368 = 171 Taxman 474 = 305 ITR 132= 7 DTR 62=
(2009) 208 Taxation 26(SC)
(2) Dumpers – Depreciation at the rate of 30 per cent is available on
dumpers.
Gujarat Tube Well Co., CIT v/s.
(2006)206 CTR 14 =(2007) 288 ITR 301= 196 Taxation 210(Guj)
(3) Depreciation under section 32(1) has to be granted in
computation of income from business and this necessarily
involves maintenance of proper books of account and
depreciation has to be necessarily granted on gross income
computed based on books of account – Assessee cannot make
estimation of net income and then claim depreciation
therefrom – Held, yes.
Ratan Corpn., Dy. CIT v/s.
(2005)275 ITR 503 = 187 Taxation 275 = 197 CTR 536 (Guj)
(4) Diesel generating set – Claim for depreciation at 15 per cent –
Allowance – .
Transpek Industry Ltd. , CIT v/s.
(2004) 265 ITR 493 = 187 CTR 337 = 136 Taxman 488 (Guj)
(5) Diesel generating set – Higher rate of 30 per cent is allowed only on
renewable energy devices as specified in the sub items of Item 10A
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153
of the Table in Part I of Appendix 1 to IT Rules, 1962 – Generator
sets running on diesel would not fall under sub item (xiii) of Item
10A so as to entitle the assessee to claim depreciation at the
higher rate of 30 per cent – It would be allowable at the normal
rate of 10 per cent.
Anang Polyfil (P) Ltd. , CIT v/s.
(2004)187 CTR 576= 136 Taxman 692=267 ITR 266 =
180 Taxation 217 (Guj)
(6) Assessee claiming depreciation on Hot Mixing Plant and Payer
Finishing Machine @ 30% and claiming both machines to be ‘earth
moving machinery’ – Held, since both the machines used for road
making assessee not entitled to depreciation at a higher rate, i.e @
30 per cent – Depreciation to be allowed @ 15 per cent only.
Utkarsh Builders, CIT v/s.
(2003) 176 Taxation 563=184 CTR 293 =264 ITR 697=
134 Taxman 701 = (2004)134 Taxman 701(Guj)
(7) Fencing ‐ Entitled to depreciation at rate applicable to buildings.
Gujarat State Fertilizer Co., CIT v/s.
(2002) 255 ITR 294 = 174 CTR 318 = 123 Taxman 651(Guj)
(8) Rate of depreciation – Motor lorry – Meaning of “motor lorry” –
Mobile crane is a motor lorry – Entitled depreciation at rate
applicable to lorries ‐ Mobile crane run for hire – Entitled to higher
rate of depreciation.
Gujco Carriers v/s. CIT
(2002) 256 ITR 50 = 174 CTR 324 = 122 Taxman 206(Guj)
(9) Assessment year 1984‐85 – Assessee, being a firm of Chartered
Accountants, made a claim in respect of intital depreciation under
section 32(1)(iv) on cost of building erected during accounting
period relevant to assessment year under consideration – Claim
was disallowed on ground that said provision was meant to apply
only in case of assessee carrying on ‘business’ and not in case of
assessee involved in ‘profession’ – Whether expression ‘business’ as
defined in section 2(13) can be extended to include ‘profession’ –
Held, no – Therefore assessee was disentitled to deduction under
section 32(1)(iv) in instant case.
G.K Choksi & Co. v/s. CIT
(2002) 122 Taxman 316 = 166 Taxation 86(Guj)
(10) Allowance / rate of – Depreciation at rate of 30 per cent can be
allowed on dumpers employed in business of road construction.
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154
HMT Construction Co., CIT v/s.
(2002) 124 Taxman 470 (Guj)
(n) UNABSORBED DEPRECIATION
Carry forward and set off ‐ Carrying on of business – Assessee
need not carry on same or any business or profession for availing of
the benefit of sub s.(2) of s. 32 – Entitled to carry forward and set
off unabsorbed depreciation.
Fabriquip (P) Ltd. , CIT v/s.
(2002) 177 CTR 149 = 123 Taxman 820 = 171 Taxation 291=
(2003) 260 ITR 207(Guj)
(o) USER
(1) Suspension of business vis‐à‐vis passive user – High Court having
dismissed assessee’s appeal without examining its claim that it is
entitled to depreciation on plant and machinery despite suspension
of business operations during the relevant previous year on the
ground of passive user, the impugned judgment is set aside and the
matter is remitted to the High Court for fresh decision in accordance
with law.
Nirma Credit & Capital Ltd. v/s. Asstt. CIT
(2008) 220 CTR 537 = 16 DTR 75(SC)
(2) Finding of Tribunal ‐ Tribunal, on examining the statements of
certain witnesses and after analyzing the material on record, having
come to the conclusion on facts that there was nothing to show that
the machinery, namely, expellers remained idle for the entire block
period, no interference was called for.
N.K Industries Ltd., Dy CIT v/s.
(2008)216 CTR 114 = 170 Taxman 22 = 305 ITR 274 = 6 DTR 131=
(2009) 208 Taxation 673(SC)
(3) Condition precedent for allowance ‐ Use of machinery or plant ‐
Machinery or plant ‐ Machinery purchased for expansion of business
‐ Trial run of machinery ‐ Assessee entitled to depreciation ‐
Ashima Syntex Ltd., CIT (ASST) v/s.
(2001)251 ITR 133(GUJ)
35. DEVELOPMENT REBATE – UNABSORBED
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155
Carry forward and set off – Carrying on of business ‐ Industrial unit
transferred within 8 years from the date of purchase and
installation of assets – Assessee not entitled to carry forward and
set off of unabsorbed development rebate and investment
allowance ‐
Fabriquip (P) Ltd. , CIT v/s.
(2002) 177 CTR 149 = 123 Taxman 820 = 171 Taxation 291=
(2003) 260 ITR 207(Guj)
(a) WHEN AVAILABLE
Effluent system – Instruments – Entitled to development rebate –
Telephone equipment – Not entitled to development rebate.
Gujarat State Fertilizer Co. , CIT v/s.
(2002) 255 ITR 294 = 174 CTR 318 = 123 Taxman 651(Guj)
36. DISALLOWANCE
(a) EXCESSIVE PAYMENT
Revision ecessive or unreasonable payments ‐ Assessment year
2001‐02 – Commissioner by invoking powers under section 263 set
aside assessment order passed by Assessing officer on ground that in
its trading account assessee company has reduced gross receipts by
claiming sub‐let payments to subcontractors and in his view said
payments could not be considered as genuine ones and legitimate
business expenditure – Accordingly, he made addition by disallowing
said payments – On appeal, Tribunal recorded findings that there
was no illegality committed by assessee in entrusting its work to sub
contractors and in making all due payments to them and that there
was no evidence on record that said contractors were related to
assessee or were associates or sister concerns of assessee – It
therefore held that no disallowance could be made on account of
said payments – On facts Tribunal was justified in quashing order of
Commissioner passed under section 263.
R.K Construction Co. , CIT v/s.
(2008)175 Taxman 165 = (2009) 221 CTR 415(Guj)
(b) s.37(3A)
Commission on sales – Any expenditure incurred for effecting
sales cannot be termed to be expenditure for sales promotion
– Expenditure incurred for making sales is a part and parcel of
the expenditure for selling the products or the goods ‐
Tribunal was right in deleting the disallowance made under s.
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156
37(3A) by treating the commission paid as not falling within
the scope of provisions of s. 37(3B).
Zippers India, CIT v/s.
(2006) 203 CTR 52 = 284 ITR 142 = 194 Taxation 632 (Guj)
(c) s. 40(a)(i)
Payment of usance interest to foreign concerns in connection with
purchase of ship – Assessee purchased ships from two non‐residents
on an agreed credit for 180 days usance period ‐ Invoices of the
purchase price of the ships and the interest amount were separately
made and the customs duty was paid on the purchase price
excluding interest – Price of the ships was considered to be separate
and there was no nexus between the interest amount and the
fixation of the price ‐ Usance interest could not therefore be treated
as part of the price – Further, meaning of the word “interest” as
defined in s. 2(28A) is very wide and would include interest on
unpaid purchase price payable by means of irrevocable letter of
credit ‐ Price payable under the memorandum of agreement was an
ascertained sum of money and it could not be said that the unpaid
price was not a debt incurred within the meaning of s. 2(28A) or a
“debt claim” under the article concerning taxation of interest in
DTAAs – Interest payable for usance period was “interest” and not
part of purchase price ‐ Assessee was responsible for paying both
the amounts viz., the purchase price and the interest amount to the
seller and not to the bank that had issued the letter of credit –
Liability of deduct tax at source was of the assessee and not of the
issuing bank – Assessee having failed to make deduction of tax from
the interest, disallowance of interest under s. 40(a)(i) was justified –
(The appeal is pending in Supreme Court – Further by Taxation Laws
(amendment) ordinance 2003 the decision is superceded with
effect from 1‐4‐1962 by adding explanation 2 to s. 10 (15)(iv) by
creating a fiction that usance interest payable outside India by an
undertaking engaged in Ship Breaking business shall be deemed to
be interest payable on a debt incurred in a foreign country in respect
of purchase outside India).
Vijay Ship Breaking Corpn. , CIT v/s.
(2003)181CTR 134 =261 ITR 113=129 Taxman 120 =
175 Taxation 233(Guj)
decision is now superceded by retrospective amendment from
1‐4‐1962 by ordinance of 2003.
And reversed Supreme Court in (2008) 219 CTR 639(SC) =
175 Taxman 77(SC)
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157
(d) s. 40(b)
(1) Interest, salary etc. paid by firm to partner ‐ Tribunal was justified
in disallowing under section 40(b), salary, consultancy and
professional fees paid to partners, in their individual capacities even
though each of them was a partner in assessee firm in his capacity
as karta of his HUF.
Industrial Linings v/s. CIT
(2003) 130 Taxman 258 = 263 ITR 315 = 177 Taxation 297(Guj)
(2) Firm – s. 40(b) disallowance under s. 40(b) – Interest to partner ‐
Interest paid to HUF partner by the firm has to be disallowed under
s. 40(b).
Simplex Rayon & Silk Processors , CIT v/s.
(2002) 177 CTR 393 = 171 Taxation 289 = 123 Taxman 838(Guj)
(3) s. 40 (b) ‐ Business disallowance – Interest salary etc. paid by firm to
partners – Remuneration in form of salary paid to partners in
individual capacity is disallowable under section 40(b) when they
are partners in firm in representative capacity as karta of HUF.
Nanalal N. Chokshi, CIT v/s.
(2002) 125 Taxman 460 (Guj)
(e)s. 40(c)
(1) Allowability – Disallowance of motor car expenses for personal
use – Expenses incurred on running of motor cars cannot be
disallowed on the ground of personal and non business use of
motor car in the hands of assessee company.
Dinesh Mills Ltd., CIT v/s.
(2005)199 CTR 509 (Guj)
(2) s. 40( c) ‐ Reimbursement of medical expenses – Cannot be excluded
while computing the disallowance under s. 40( c). ‐ Disallowance
under s. 40(c) –Group insurance premium – Reimbursement of group
insurance premium is to be excluded in computing disallowance
under s. 40(c).
Rohit Mills Ltd., CIT v/s.
(2004) 187 CTR 623 = 180 Taxation 91 = 139 Taxman 429 (Guj)
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158
(3) S. 40(c) ‐ Commission paid to Managing Director – To be taken as
perquisite for purposes of section 40(c) – Income Tax Act, 1961, s.
40 ( c)
Dinesh Mills Ltd. V/s. CIT
(2004) 268 ITR 502 (Guj)
(4) Disallowance of benefit or amenity given to a Director – s. 40(c) ‐
Assessee giving Rs. 5,400 for bonus and Rs. 10,500 being leave
encashment and leave travel concession to a Director – AO including
all the amounts for disallowance under section 40( c) – Held, all the
items to be included for disallowance under section 40( c).
Mehta Parikh & Co. (P) Ltd. , CIT v/s.
(2003) 174 Taxation 554(Guj)
(5) S. 40(c) ‐ Remuneration etc. paid in excess of prescribed limit in case
of company, etc. – Tribunal was right in law in considering
commission paid to managing director as perquisite for purpose of
section 40( c).
Dinesh Mills Ltd. Ltd. V/s. CIT
(2003) 130 Taxman 260 (Guj)
(6) S. 40 (c) ‐ Remuneration, etc. paid in excess of prescribed limit –
Payment on account of bonus and leave encashment to directors is
not required to be excluded for computing disallowance under
section 40(c ).
Mehta Parikh & Co. (P) Ltd. , CIT v/s.
(2002) 124 Taxman 466(Guj)
(7) Remuneration paid to Managing Director – Disallowance to be made
notwithstanding fact that remuneration was reasonable having
regard to business requirements of company.
Commission – To be taken into account for computing disallowance
under section 40(c ) ‐ Expenditure incurred for maintenance of
house at Bombay ‐ House used by assessee for accommodating
officers and executives as and when they were on official business
on behalf of company – Provisions of section 37(5) cannot be
invoked.
Mihir Textiles Ltd., CIT v/s.
(2002) 256 ITR 528 = 172 CTR 344 – 166 Taxation 713 =
121 Taxman 60 (Guj)
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159
(8) Limits on certain expenditure on exployees towards benefit or
perquisites ‐Disallowance of excess ‐ Extent of disallowance ‐
Provision of statute to be applied ‐ Rule relating to computation of
such benefit or perquisite to assess it in hands of employee not
relevant ‐
British Bank of Middle East, CIT v/s.
(2001) 251 ITR 217(SC)
(9) Reimbursement of medical expenses to managing director ‐ Has to
be included for the purpose of disallowance under s. 40(c) –
Ahmedabad New Cotton Mills Co. Ltd., CIT v/s.
(2001) 171 CTR 495(GUJ)
(10) House rent allowance to managing director ‐Cannot be considered
for the
purpose of disallowance under s. 40(c) –
Ahmedabad New Cotton Mills Co. Ltd., CIT v/s.
(2001) 171 CTR 495(GUJ)
(f) s. 40A(5)
(1) Remuneration etc. paid in excess of prescribed limits in case of
company, etc. – Assessment year 1978‐79 – Whether only one limit is
prescribed for deduction under section 40A(5) on account of salary
whether paid to an employee in service or a retired employee in any
one previous year – Held, yes ‐ Circular and clarifications – Circular
dated 6‐10‐1952, Circular dated 5‐10‐1984.
Mercantile Bank Ltd. v/s. CIT
(2006)153 Taxman 97= 202 CTR 457 = 283 ITR 84 =
193 Taxation 563 (SC)
(2) Leave salary paid to retiring employees – Is specifically
included in the definition of “salary” directly by virtue of s.
17(1)(va) and indirectly by the provisions of s. 17(3)(ii) ‐
Therefore, the same is to be taken into consideration for the
purposes of determination of the limit specified in sub.s (5)
of s. 40A – Therefore, such expenditure is not deductible
subject to the specified limit – Provision of s. 10(10AA) can
come into play in the hands of the recipient employee and
cannot be projected while computing the income under the
head “profits and gains of business or profession” in the hands
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of the employer when the limit of disallowance expenditure
is to be worked out under s.40A(5).
Alembic Glass Industries Ltd., CIT v/s.
(2004) 197 CTR 514 = 279 ITR 331=149 Taxman 15 =
(2006) 190 Taxation 520(Guj)
(3) Remuneration to employee – Payment on account of medical
insurance and accident insurance premium – Not to be taken into
account for computing disallowance under section 40A(5).
Mihir Textiles Ltd., CIT v/s.
(2002) 256 ITR 528 = 172 CTR 344 = 166 Taxation 713 =121 Taxman
60 (Guj)
(4) Accident insurance in respect of Managing Directors ‐ Insurance
policy of the directors was taken by the company and premium was
also paid by the company – Same not includible for the purposes of
computing disallowance under s. 40A(5).
Gujarat Steel Tubes Ltd., CIT v/s.
(2002) 177 CTR 191=123 Taxman 994=171 Taxation 274=
258 ITR 235(Guj)
(5) s. 40A (5) ‐ Medical expenses in respect of Managing Directors –
Includible for the purpose of computing disallowance under s.
40A(5).
Gujarat Steel Tubes Ltd., CIT v/s.
(2002) 177 CTR 191=123 Taxman 994=171 Taxation 274=
258 ITR 235(Guj)
(6) s. 40A (5) ‐ Medical benefits and group term insurance –
Expenditure in respect of medical benefits and group term
insurance has to be excluded for the purpose of s. 40A(5).
Sarangpur Cotton Mfg. Co. Ltd., CIT v/s.
(2002) 177 CTR 467 = 124 Taxman 30 = 171 Taxation 499(Guj)
(g) s. 40A(8)
(1) Disallowance under s. 40A(8) – Financial company – Business of
purchase and sale of shares – In order to be and “investment
company”, the company has to carry on as principal business
acquisition of either any one or all the three categories of
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specified financial instruments – A narrow view cannot be
ascribed to the term acquisition so as to mean acquiring of
shares and securities only for the purposes of receiving
dividend of interest therefrom – A company which makes
investment only for the purposes of yield from the investments
cannot be taxed under the head ‘profits and gains of business
or profession’ – Moreover, assessee company is treated and
registered as an “investment company” by the RBI under the
provisions of Non‐ Banking Financial Companies (Reserve
Bank) Directions, 1977, which are issued under the provisions
of RBI Act – Any decision by RBI which has been arrived at
after consultation with the Central Government as to the status
of a company, namely whether a company which is a financial
institution is an investment company or not, would be final
insofar as the financial system is concerned – Chapter III‐B of
the RBI Act has an overriding effect – Further, the definitions
of ‘financial institution” are identically worded in the RBI Act
and the IT Act – That apart, assessee has been treated as an
“investment company” in the past – Revenue has not been able
to show any change of circumstances – Therefore, Tribunal
erred in holding that the assessee company was not a
“financial company” within the meaning of cl. (c) of
Explanation to s. 40A(8).
Barkha Investment & Trading Co. v/s. CIT
(2006)200 CTR 342 =150 Taxmman 523 = 281 ITR 316 =
193 Taxation 90 (Guj)
(2) Sharafi accounts maintained by agents with assessee ‐ In order to
have the benefit of cl. (b)(vii) of explanation to s. 40A(8) the
assessee has to show that the amount of interest was paid on
amount received by it by way of security of goods or for
rendering of any service ‐ No evidence to the above effect was
adduced before the lower authorities ‐ On the contrary there is a
finding to the effect that interest was paid on Sharafi accounts
maintained by the agents with the assessee ‐ Assessee cannot claim
any benefit under the explanation ‐ Disallowance justified ‐
Matter cannot be remanded to the Tribunal to enable the assessee
to adduce additional evidence.
Jagdish Processors (P) Ltd., CIT v/s.
(2001)171 CTR 85 = 252 ITR 755(GUJ)
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(h) S. 43A(3)
Rule 6DD(j) – Cash Expenditure ‐ Tribunal finding payments made by
assessee in cash beyond prescribed limit in village where no banking
facilities available – Payments covered by exceptional circumstances
as prescribed in rule 6DD(j) – Income Tax Rules, 1962, r. 6DD(j).
Parle Sales and Services Pvt. Ltd., CIT v/s.
(2008) 307 ITR 87(Guj)
(i) s. 43B
Contribution to provident fund – Contribution towards PF and
ESI having been paid by the assesse within 2 to 4 days after the
grace period provided under s. 43B but before filing the
return, disallowance under s. 43B was rightly deleted by the
Tribunal.
Vinay Cement Ltd., CIT v/s.
(2007) 213 CTR 268(SC)
37. DIVERSION OF INCOME BY OVERRIDING TITLE
Co‐operative society – Amount transferred to reserve fund under
section 67 of Gujarat Co‐operative Societies Act – Portion of profits
transferred ‐ Assessee having control over funds – Amounts not
diverted by overriding title – Amount not deductible as business
expenditure – Amount assessable ‐ Income tax Act, 1961, ss. 28, 37.
Mehsana Dist. Co‐op. Milk Producers’ Union Ltd. CIT v/s.
(2008) 307 ITR 83 = 205 Taxation 278= 2 DTR 280 = 4 DTR 222
(2009) 309 ITR 100 =176 Taxman 416 (Guj)
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38. DOUBLE TAXATION
(1) Double Taxation relief ‐ Assessee not having permanent
establishment in India – Income derived from sale of immovable
property and from business in Malaysia – Not assessable in India –
Agreement for avoidance of double taxation between India and
Malaysia.
Kulandagan Chettiar (P.V.A.L), CIT v/s.
(2008) 300 ITR 5 = (2004)189 CTR 193=137 Taxman 460(SC)
(2) Agreement between India and Malaysia ‐ Dividend income –
Dividend income derived by the assessee from a company in
Malaysia is not liable to be taxed in the hands of the assessee in
India by virtue of provisions of DTAA between India and Malaysia.
Torqouise Investment & Finance Ltd. & Ors., Dy. CIT v/s.
(2008) 215 CTR 209 = 168 Taxman 107 = 300 ITR 5 =
205 Taxation 184 = 3 DTR 322(SC)
(3) Non‐resident of Korea – Contract for designing, fabrication,
hook‐up and commissioning of platform in Bombay High –
Fabrication completed in Korea – Permanent establishment in
India after fabrication but before installation – Profits relating
to fabrication in Korea not taxable – Only income relating to
installation taxable – Accounts of non‐resident rejected – Non‐
resident taxable on 10 per cent of gross receipts relating to
installation – Convention for the Avoidance of Double Taxation
between India and Korea, art. 7 – Income Tax Act, 1961, ss. 9,
44BB.
Hyundai Heavy Industries Co. Ltd., CIT v/s.
(2007) 291 ITR 482 = 210 CTR 178 =161 Taxman 191 (SC)
(4) Where agreement exists – Once a notification is issued under section
90 provisions of such an agreement, with respect to cases to which
where they apply, would operate even if inconsistent with the
provisions of the Income Tax Act – Therefore, Circular No. 789, dated
13‐4‐2000 clarifying that FIIs, etc. which are resident in Mauritius
would not be taxable in India on income from capital gains arising in
India on sale of shares is valid and efficacious – Double taxation
agreement between India and Mauritius is valid in law – An attempt
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164
by residence of a third party to take advantage of existing provisions
of DTAC is per se not illegal.
Azadi Bachao Andolan, Union of India
(2002) 125 Taxman 826 =
(2003) 132 Taxman 373 =263 ITR 706 =184 CTR 450 =
177 Taxation 775 (SC)
(5) Agreement between India and Austria – Retention
remuneration of foreign technician deputed in India –
Condition (c) of cl. (2) of art. 14 only requires that the
individual claiming exemption from tax liability in India should
be liable to tax under the Austrian statute – Said condition
does not stipulate actual payment of tax as insisted upon by
the Revenue authorities – It is possible that a person may be
liable to tax under a statute but may not be actually taxed by
virtue of some other provision under the same statute – In
order to claim benefit under the exception clause (c ), the
assessee has to discharge the onus to show that he is subject
to Austrian tax – Tribunal is directed to decide the issue of his
tax liability in accordance with law after taking into
consideration further evidence that may be adduced by the
parties.
Emmerich Jaegar v/s. CIT
(2005)193 CTR 57= 185 Taxation 92 = 274 ITR 125=
144 Taxman 203 (Guj)
(6) DDA prevails over provisions of Income Tax Act – Income Tax Act,
1961 ss. 4, 5, 90.Agreement between India and Malaysia – Effect –
Assessee not having permanent establishment in India – Income
derived from rubber estate in Malaysia – Not Assessable in India –
Capital gains arising on sale of immovable property in Malaysia –
Not assessable in India – Agreement for avoidance of double
taxation between India and Malaysia ‐ Assessee not having
permanent establishment in India – Income derived business in
Malaysia – Not assessable in India – Agreement for avoidance of
double Taxation between India and Malaysia,
Capital Gains ‐ Treated as ‘income’ under Income Tax law of India – Is
‘income’ and covered by double taxation agreement ‐ Agreement
for avoidance of double taxation between India and Malaysia ‐
Residence ‐ No permanent establishment in India – Residence in
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India becomes irrelevant – Agreement for avoidance of double
taxation between India and Malaysia,
P.V.A.L Kulandagan Chettiar, CIT v/s.
(2004)267 ITR 654 = 137 Taxman 460 = 181 Taxation 557 (SC)
39. ESTATE DUTY
(a) AGGREGATION OF ESTATE
For purpose of working out rate under section 34(1)(c ), interest in
joint family property of all lineal descendants of deceased member
is to be aggregated with all property passing on death of deceased –
Only property that can be divided on partition is coparcenary or
joint family property ‐ Interest of wives of coparceners (sons) has
not to be excluded in determining share of lineal descendants which
is to be included in principal value of estate left by deceased (father)
for rate purposes under section 34(1)(c).
Geetaben Vipinbhai Shah (Smt), CED v/s.
(2004)139 Taxman 99 =190 CTR 612=270 ITR 282=
183 Taxation 391 (Guj)
(b) DEDUCTIONS
Deceased had withdrawn Rs. 3,14,345 from firm in which he was a
partner and had invested same in construction of house which
passed on his death– Accountable person claimed deduction of said
debt amount from aggregate value of property passing on death
of deceased – Assistant Controller disallowed deduction on ground
that debt amount was allowable only from value of house property
and not from aggregate value of property – Tribunal allowed the
claim of accountable person – Since amount withdrawn by deceased
was not a loan taken by him from any bank or financial institution
which had created any charge over house property constructed
with said funds, Tribunal was justified in treating it as a general
debt allowable from aggregate value of property .
Lalitkumar Savjibhai , CED v/s.
(2004)136 Taxman 662 =181 Taxation 650 =190 CTR 620=
270 ITR 195 (Guj)
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(c) ESTATE DUTY ACT ‐ DEBTS
For purpose of levying estate duty, liability of ancestral or
coparcenary property of a Hindu to pay for marriage expenses of
unmarried daughters in family would be a proper debt deductible
under general provisions of section 44, where deceased died
possessed of such property .
Kamlaben Subodhchandra , CED v/s.
(2004)137 Taman 414=190 CTR 110 =269 ITR 570 =
182 Taxation 689 (Guj)
(d) REASSESSMENT
Upon death of deceased, his wife i.e accountable person, offered for
estate duty one‐half of share of deceased in HUF consisting of
deceased and his wife ‐ Assistant Controller completed assessment
proceedings – Subsequently, he issued a notice for reopening of
assessment on ground that deceased was sole surviving coparcener
and, thus had power to dispose of property as if it was his separate
property, and that wife could not have objected to such alienation
during his lifetime ‐ Since in original order of assessment, revenue
had accepted that wife had half a share and that only deceased’s
half share passed on his death, it could not be said that case called
for any reassessment.
Hemkunverben Kalyanji AP of Late Kalyanji Bachulal (Smt),CED v/s.
(2004) 139 Taxman 143 = 192 CTR 532 = (2005) 184 Taxation 85 =
275 ITR 635(Guj)
(e) REFERENCE
Scope ‐ Additional or new ground – Not referable to any material
on record and regarding which no submissions were made earlier at
any stage ‐ Further, reference is pending for long and ED Act also
stands repealed ‐ Additional or new ground therefore could not be
admitted.
Vipin K. Nagori, CED v/s.
(2002) 177 CTR 160 = 123 Taxman 955 = 171 Taxation 262 =
258 ITR 326 (Guj)
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167
(f) VALUATION
Section 36, read with section 33(1)(n), of the Estate Duty Act, 1953,
read with rule 14 of the Estate Duty Rules, 1952 and rule 1BB of the
Wealth Tax Rules, 1958 – Valuation of estate – Where residential
house belonging to deceased (which is to be specified by
accountable person at his or her option) is assessed to wealth tax on
valuation date immediately preceding date of deceased’s death, it is
mandatory for authorities under Estate Duty Act to adopt valuation
in respect of said property under Wealth Tax Act .
Lalitkumar Savjibhai , CED v/s.
(2004)136 Taxman 662 = 181 Taxation 650 = 190 CTR 620
=270 ITR 195 (Guj)
40. EXECUTOR
Income derived from estate of deceased husband – Assessee sole
legal heir – Assessee as an individual cannot be charged to tax –
Income tax Act, 1961, s. 168.
Mrunalinidevi Puar of Dhar , CIT v/s.
(2008) 305 ITR 263(Guj)
41. EXEMPTION
(1) Value of occupied residential house of deceased was shown at Rs.
1,33,000 – Accountable person claimed exemption of Rs. 1 lakh
under section 33(1)(n) out of said property that actually belonged
to HUF ‐ Assistant Controller taking a view that exemption was
available to extent of share of deceased in HUF property or Rs. 1
lakh whichever was less, granted an exemption of around Rs. 22,200
‐ In view of fact that HUF had number of other immovable as well
as movable properties, it was possible that at that time of fictional or
notinal partition immediately prior to death of deceased entire self –
occupied property in question could have gone to share of deceased
– Therefore, exemption of Rs. 1 lakh could be allowed to estate of
deceased under section 33(1)( n).
Kamlaben Subodhchandra, CED v/s.
(2004)137 Taxman 414= 190 CTR 110 =269 ITR 570=
182 Taxation 689 (Guj)
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168
(2) Foreign technician ‐ Daily allowance received for services in India –
Exempt from tax – Income Tax Act, 1961, s. 10(14) – Notification No.
S.O 143(E) dated February 21, 1989.
Morgenstern Werner, CIT v/s.
(2003) 259 ITR 486 = 180 CTR 202 = 132 Taxman 214 (SC)
(a) s. 10(4A)
Interest on "non‐resident (external) account" ‐ Resident but not
ordinarily resident ‐ By virtue of Circular No. 6‐P of 1968, dt. 6th
July, 1968 and assessee who fulfilled the eligibility
conditions under the scheme framed by the RBI was entitled to
operate "non resident (external) account" and, therefore, he was
entitled to the benefit of being treated as "non‐resident" for the
purposes of the Act as specified in the circular ‐ What was stated
by way of said circular was later incorporated as part of the
provisions w.e.f 1st April, 1982 ‐ Therefore, an assessee who is
otherwise eligible to open and operate "non‐resident (external)
account", as per guidelines issued by the RBI is entitled to be
treated as "non‐resident" for the purpose of exemption under s.
10(4A) ‐ Even otherwise, the term "non‐resident" as defined in s.
2(30) has to be read in the contextual setting of s. 10(4A) and if read
in that manner it will include within its fold the meaning as
prescribed under the provisions of FERA and the rules made
thereunder ‐ Assessee was permitted to open "non resident
(external) FD account" when hsi status was non‐resident ‐
Exemption under s. 10(4A) cannot be denied in the years under
consideration when the status of the assessee is "resident, but not
ordinarily resident".
Rambhai L. Patel v/s. CIT
(2001)171 CTR 16= 252 ITR 846= 166 Taxation 261=
(2003) 129 Taxman 866(GUJ)
(b) s. 10(10C)
Allowability – Vol. Retired Scheme ‐ Limits specified in R.
2BA(vi) – Rule 23A does not restrict the exemption under s.
10(10C) to the amount representing the lower of the two
limits specified in Cl. (vi) of r. 2BA – Amount upto Rs. 5,00,000
qualifies for exemption under s. 10(10C).
Guidelines prescribed in r. 23A – It is not the intention of the
legislature that every scheme must provide for payment of an
168
169
amount equivalent to (1) three months salary for each
completed year of service or (2) salary at the time of
retirement multiplied by balance months of service left before
the date of retirement on superannuation ‐ Only condition of
r. 2BA is that the amount receivable should not exceed these
limits.
Arunkumar T. Makwana v/s. ITO
(2006) 204 CTR 433=286 ITR 502= 195 Taxation 611 (Guj)
(c) s. 10(20)
(1) Local authority ‐ Agricultural Market Committee – After insertion of
explanation to s. 10(20), Agricultural Market Committee no more
remains a “local authority”, hence not entitled to exemption under
s. 10(20).
Agricultural Produce Market Committee v/s. CIT
(2008)216 CTR 433 = 173 Taxman 115 = 305 ITR 1 =
11 DTR 289 = (2009) 208 Taxation 103(SC)
(2) As amended by the Finance Act, 2002) of the Income Tax Act,
1961, read with article 289 of the Constitution of India Local
authority ‐ Assessee, an Industrial Area Development Authority Act,
1974to provide for planed development of industrial area, for
promotion of industries and matters appurtenant thereto – By
Finance Act 2002, section 10(20A) providing for exclusion of income
of an authority constituted under any law enacted for purpose of
meeting need for housing accommodation and for purpose of
planning development or improvement of cities, towns and
villages, was omitted and Explanation, explaining local authorities
whose income is not chargeable to tax under Act, was added to
section 10(20) with effect from 1‐4‐2003 – In view of amendment,
Commissioner issued a notice to Manager of Bank to deduct income
tax at source from interest accrued on fixed deposit receipt of
assessee ‐ Assessee filed writ challenging notice of Commissioner on
ground that its income was not liable to be assessed under Act, in
view of article 289(I) – High Court held that in view of amendment,
assessee could not claim benefit under section 10(20A) and
Explanation to section 10(20) after 1‐4‐2003 and that exemption
under article 289(1) was also not available to assessee as it was a
distinct legal entity and its income could not be said to be income of
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170
State so as to be exempted from Union taxation – Whether High
Court was right in holding so – Held, yes.
Adityapur Industrial Area Development Authority v/s.
Union of India
(2006)153 Taxman 107= 202 CTR 464 = 283 ITR 97 =
193 Taxation 570 (SC)
(d) s. 10(22)
(1) Educational institution ‐Absence of formal education vis‐à‐vis
ancillary activities to impart education ‐ Expression “educational
institution” in s. 10(22) would take colour from the preceding word
“university” – Hence, the expression “other educational institution”
would mean an institution imparting formal education in an
organized and systematic training where the institution would be
accountable to some authority and where there would be teachers
and taught, the former having some degree of control over the latter
– Term “educational institution” contemplated by s. 10(22) is a
narrower concept – It must be more than a body carrying on
charitable activities in the field of education as contemplated by s.
2(15) – Assessee itself does not conduct any courses in formal
education – It runs English coaching classes for school students,
guidance classes for CA entrance examinations and refresher courses
for English language teachers and for banking service recruitment ‐
Assessee is not affiliated to, or registered by, any authority – Also,
assessee does not exercise any control over the recipients of training
being given by it – Therefore, it was not entitled to exemption
under s. 10(22).’
Saurashtra Education Foundation v/s. CIT
(2004) 190 CTR 295 = 183 Taxation 379=141 Taxman 26 =
(2005) 273 ITR 139(Guj)
(e) s. 10(23)
Charitable purpose ‐ Registration under s. 12A ‐ Order of the
Tribunal holding that registration under s. 12A was fait accompli to
hold the AO back from further probe into the objects of the
assessee stands concluded by the earlier decision of the High Court
which has not been challenged by the Revenue and, therefore,
exemption under s. 10(23) cannot be denied.
Surat City Gymkhana, Asstt. CIT v/s.
(2008) 216 CTR 23 = 300 ITR 214 = 170 Taxman 612= 5 DTR 115(SC)
170
171
(f) s. 10(23C)
Educational institution – Existing solely for educational purposes and
not for profit ‐ Change of law ‐ Application for recognition ‐ Initial
approval – Considerations – Prescribed authority – Possible aspects –
Income tax Act, 1961, s. 10(23C)(vi), prov. (iii), (xii), (xiii) – Income tax
Rules, 1962, r. 2CA, Form No. 56D ‐University or other educational
institution ‐ Existing solely for educational purposes and not for
profit – Income tax Act, 1961, ss. 10(22) (omitted w.e.f April, 1,
1999), 11, 13 – Requirement before & after amendment analyzed.
American Hotel and Lodging Association Educational Institute
v/s. CBDT
(2008) 301 ITR 86 = 216 CTR 377 = 170 Taxman 306 =
206 Taxation 126 = 7 DTR 183 (SC)
(g) Passing of Property
(1) Estate ‐ Part of Indian state which merged in dominion of India in
1948 – Estate
ceasing to exist by Act of State – Fresh grant to son after death of
erstwhile owner on fresh terms in 1958 – Subsequent statute
abolishing tenure of estate and fixing of compensation – No
restoration of rights over estate – Estate did not pass on death of
erstwhile owner.
Pratapsinhji Ramsinhji, CED v/s.
(2002) 255 ITR 365 = 174 CTR 591 = 169 Taxation 54 =
(2003) 127 Taxman 66 (Guj)
(2) Share in HUF Property – Inheritance from husband ‐ K, the pre‐
deceased husband of the deceased H, had bequeathed his
undivided interest in all the property of the bigger HUF upon the
HUF consisting of his two sons and his wife H – Since the undivided
interest of K. devolved upon the said HUF, H did not inherit any
portion of the said undivided interest in her individual capacity ‐
Consequently no share of HUF estate was includible in the property
passing on her death – Provisions of s. 39 apply only when there is
cessation of coparcenary interest – Since the female cannot be a
coparcener under the Mitakshara law, the interest of H in the
smaller HUF at the time of her death cannot be said to be
coparcenary interest ‐ Hence, the provisions of s. 39 were also not
applicable.
Vipin K. Nagori, CED v/s.
(2002)177 CTR 160 = 123 Taxman 955 = 171 Taxation 262=
258 ITR 326 (Guj)
171
172
(3) Sagbara Estate was feudatory of State of Rajpipla but had distinct
status and political entity – In year 1948, State of Rajpipla merged
into dominion of India – Government of India took administration
and control of Rajpipla and Sagbara Estate without any separate
agreement with Sagbara Estate Government of India neither
granted recognition to ruler of Sagbara Estate nor restored property
– Properties of Sagbara Estate were taken over by an act of State in
1948 – Acquisition of territory by a Sovereign State for first time is
an act of State which cannot be challenged, controlled or interfered
with by Courts of State – Once area of Sagbara Estate became part of
Indian Territory, it could not be restored retrospectively from date
of merger of State of Rajpipla as if it had not merged under cession –
Subsequent restoration of Sagbara Estate on 13‐1‐1958 was just an
instance of grace shown by Government of India, necessarily to be
treated as fresh grant and it was not an act of State – K, ruler of
Sagbara, was not competent to dispose of any of properties which
were taken over by act of State on 10‐6‐1948, and had vested in
Dominion of India under merger agreement ‐ Only property which
deceased K had at time of his death and which deceased was
competent to dispose of, shall be deemed to pass on death, as
provided by section 6 and since there was no property which could
pass on death of deceased under section 5, there could arise no
question of levy of estate duty from accounting person.
Pratapsinhji Ramsinhji , CED v/s.
(2003)127 Taxman 66 =(2002) 255 ITR 365 = 174 CTR 591 =
169 Taxation 54 (Guj)
42. EXPORTS MARKETS DEVELOPMENT ALLOWANCE – S. 35B
(1) Scope of allowance – Small‐scale exporter – Provisions of
section 35B do not apply to mere “processing” – Assessing
purchasing different grades and brands of tea and blending
them and exporting them – Activity amounts only to
“processing” – Assessee not entitled to weighted allowance –
Income tax Act, 1961, s. 35B(1A).
Tara Agencies, CIT v/s.
(2007)292 ITR 444 = 210 CTR 454 = 162 Taxman 337 =
201 Taxation 359 (SC)
172
173
(2) Weighted Deduction ‐ Assessee a bank – Assessee claiming that its
Branch in Bangkok paying interest to depositors and thus it was
entitled to weighted deduction under section 35B91)(b)(iv) – Held,
assessee not entitled to deduction in view of judgment of Apex
Court in the case of Arvinda paramila Works vs. Commissioner of
Income Tax , reported in (1999) 150 Taxation 128, 237 ITR 284.
Indian Overseas Bank v/s. CIT
(2004) 179 Taxation 5 = 190 CTR 105 = 140 Taxman 454(SC)
(3) Assessee claiming weighted deduction on Rs. 2,434 in respect of rent
‐ Assessee claiming further weighted deduction on Rs. 20,640 on
account of interest paid to bank on export packing credit – Held,
assessee not entitled to weighted deduction for any of the items.
Mehta Parikh & Co. (P) Ltd. , CIT v/s.
(2003) 174 Taxation 554(Guj)
(4) Commission payments – Assessee is not entitled to claim weighted
deduction under s. 35B in respect of the commission payments to
agents in India.
Sarangpur Cotton Mfg. Co. Ltd., CIT v/s.
(2002) 177 CTR 467 = 124 Taxman 30 = 171 Taxation 499 (Guj)
(5) High Court, following CIT v. C. Tharian & Sons, Cashew Exporters
(1987) 166 ITR 607/34 Taxman 76, held that assessee was not
entitled to weighted deduction under section 35B ‐ Whether answer
by High Court to question posed to it, relying exclusively upon
Tharian's case, which was per incuriam, was bad in law ‐ Held, yes.
Albert (N.J) v/s. CIT
(2001) 116 TAXMAN 536(SC)
(6) Whether export markets development allowance would be
allowable under section 35B(1)(b) in respect of expenditure
incurred for foreign indenting business where services in this
connection were rendered in India ‐ Held, no.
Chika Ltd., CIT v/s.
(2001) 117 TAXMAN 345(SC)
173
174
(7) Weighted deduction ‐ Failure to mention specific clause under
which allowed ‐ Order not invalid ‐ Income Tax Act, 1961, s. 35B.
Pubjab Bone Mills , CIT v/s.
(2001) 251 ITR 780 = 170 CTR 558(SC)
(8) Export insurance, freight, packing and stitching charges ‐ Not
eligible for weighted deduction under s. 35B –
Mihir Textile Ltd. v/s. CIT
(2001) 170 CTR 606 = 252 ITR 686(GUJ)
(9) Weighted deduction ‐ Expenditure incurred in India for analysis of
product
for obtaining certificate of standard ‐ Not entitled to weighted
deduction.
Patidar Oil Cake Industries, CIT v/s.
(2001) 252 ITR 450 = 171 CTR 492(GUJ)
43. FIRM
(a) CLUBBING ‐ COMMON PARTNERS
Not an independent entity ‐Only a compendious name given to
partnership for convenience – Partners are real owners of assets of
firm.
Khadervali Saheb(N), v/s. N. Gudu Sahib
(2003) 261 ITR 1 = 129 Taxman 597 = 175 Taxation 431 (SC)
(b) DISSOLUTION
(1) Two assessments or one ‐ Reconstitution of firm after
retirement of some partners – After retirement of some
partners, remaining partners entered into a new partnership
agreement with some new partners incorporating fresh terms
including a change in accounting period – Books of account of
old partnership were closed and balance sheet was drawn up
on the date of retirement – There was no mention of old
partnership in the new partnership deed – Change in
accounting period accepted by AO – Therefore, Tribunal was
justified in holding that two separate assessments had to be
made.
Ketan Chemicals, CIT v/s
(2006) 200 CTR 638 = 281 ITR 244 = 192 Taxation 349 (Guj)
174
175
(2) Arbitration for division of assets of firm ‐ Award distributing
residue of assets of firm, after settlement of accounts, between
partners in accordance with their shares ‐ Does not transfer or
assign interest in any asset ‐ Does not require registration.
Khadervali Saheb(N), v/s. N. Gudu Sahib
(2003) 261 ITR 1 = 129 Taxman 597 = 175 Taxation 431 (SC)
(c) REGISTRATION
(1) Genuineness of firm – Question of fact – What inference of
facts should be drawn from fact available on record – Question
of fact ‐
Arvind Jewellers, Commissioner of Income Tax v/s
(2007) 290 ITR 689(Guj)
(2) Income tax principle that firm is a separate assessee – Does not
apply in the context of immunity under Voluntary Disclosure of
Income Scheme, 1997.
Tanna and Modi v/s. CIT
(2007) 292 ITR 209 =210 CTR 273 = 161 Taxman 329 =
201 Taxation 194 (SC)
(3) S.185 ‐ Validity of partnership – Firm with trustees as partners –
Trustees neither authorized by trust deeds nor empowered by
beneficiaries t enter into partnership ‐ Firm not valid – Not entitled
to registration.
Swashraya , CIT v/s.
(2006)286 ITR 265 = 205 CTR 290 =(2007)197 Taxation 297(Guj)
(4) Individual partners representing their respective AOPs – AO
denied registration to assessee firm on the ground that it was
not a genuine firm as individuals representing their respective
AOPs were not real partners and that some of the members
of said AOPs were minors, and the AOPs had been
constituted with the sole object of reducing tax liabilities ‐
Not justified ‐ Tribunal fond that the assessee firm had
complied with the statutory requirements prescribed for
seeking registration ‐ There is no infirmity in the order of the
Tribunal holding that assessee is entitled to registration.
Jupiter Construction Co., CIT v/s.
(2005) 193 CTR 292 = 185 Taxation 313= 274 ITR 454(Guj)
175
176
(5) Position prior to 1‐4‐1993 – There was persistent non compliance
by assessee firm to notices issued by ITO under sections 143(2) and
142(1) – By a letter dated 8‐2‐1985 ITO intimated assessee that in
case of non compliance, it would be treated as an unregistered firm
(URF) ‐ However, assessee failed to attend hearing which resulted
in exparte assessment under section 144 and also refusal of
registration – Commissioner (Appeals) treated order refusing
registration as order under section 186(2) and letter dated 8‐2‐
1985 as notice within meaning of said section – Notices issued by
ITO from time to time could not be treated as notice under section
186(2) since those notices primarily related to assessment
proceedings for purposes of computing taxable income – Though
order of ITO in effect was an order refusing to grant registration
and not cancelling registration, if assessee firm was granted
registration for any previous assessment year, Tribunal was right in
holding that provisions of section 186(2) were applicable to facts of
assessee’s case and that requirements of said section were not
complied with – Since ITO had cancelled registration without giving
minimum notice period of 14 days and reasonable opportunity of
being heard to assessee, Tribunal was right in quashing and setting
aside order passed by ITO as confirmed by Commissioner (Appeals)
and also in restoring matter to file of ITO since relevant facts were
not available on record i.e compliance by assessee with all
necessary formalities entitling it to registration ..
Trimurti Builders, CIT v/s.
(2004)137 Taxman 344 = 189 CTR 444= 269 ITR 225=
182 Taxation 682 (Guj)
(6) Conditions precedent – Specification of shares – No minor admitted
to benefit of partnership‐ Shares can be ascertained by taking into
consideration deed of partnership, accounts and other documents –
That shares in loss not specified – Not ground for rejecting
registration – Specification of shares in capital ‐ Not a requirement ‐
Kerala Agricultural Income Tax Act, 1950, ss. 20, 27 – Income Tax Act,
1961, s. 184.
Balakrishnan Nair (P.V)., Commr. of Agrl. I.T v/s.
(2003) 264 ITR 563 =(2004) 186 CTR 101= 134 Taxman 261(SC)
176
177
(7) Firm constituted in violation of Arms Act and Rules – Not entitled
to registration.
Friends & Co. , CIT v/s.
(2002) 256 ITR 177 = 172 CTR 386 (SC)
(8) During accounting period 12‐11‐1977 to 30‐8‐1978, minor ‘G’
attained majority on 9‐8‐1978, thereafter a new partnership deed
was executed, admitting ‘G’ to a partnership effective from 12‐11‐
1977 – Commissioner, acting under section 263 cancelled
registration granted by ITO on view that a valid partnership deed
could not be said to be in existence from 12‐11‐1977 onwards –
Tribunal granted registration to firm – Whether Tribunal was right –
Held, no.
Nathalal Karsandas, CIT v/s.
(2002) 120 Taxman 424(Guj)
(d) TRUST OR INDIVIDUAL
Person assessable – Income received in the capacity of trustee –
Assessee, a trustee of a trust, representing the trust in a partnership
firm – Income allocated to the assessee as a partner already
assessed in the hands of the beneficiaries – Same could not be said
to be the income of the assessee, especially when the firm was duly
registered and had been assessed.
Rangraj Keshumal, CIT v/s.
(2004) 187 CTR 471 = 267 ITR 476 = 141 Taxman 290 (Guj)
See also Trust.
44. FRINGE BENEFIT TAX
Tour and travel ‐ Expenditure incurred on traveling of non‐resident
employees from home country to India and from city in India to
place of work – Assessee having a PE in India carrying business in
India, having for its business activities
engaged persons from India and outside India, if incurs any
expenditure for bringing any employee from abroad, the same
would be liable to FBT under s. 115WB(1) – For purposes of
applicability of s. 115WB(1), employee need not be resident in India.
R & B Falcon (A) Pvt. Ltd. V/s. CIT
(2008) 216 CTR 289 = 169 Taxman 515 = 301 ITR 309 =
206 Taxation 241 = 6 DTR 313(SC)
177
178
45. GIFT TAX ACT
(a) CHARGEABILITY
Issue of bonus shares – No chargeable gift arose out of issue of
bonus shares to its shareholders by assessee company as fully
paid bonus shares are merely a distribution of capitalized
undivided profit as it would be a misnomer to call the recipients
of bonus shares as donees of shares from the company.
Khoday Distilleries Ltd. v/s. CIT
(2008) 220 CTR 228 = 307 ITR 312 = 15 DTR 126(SC)
(b) DEEMED GIFT
(1) Deemed gift under s. 4(1)(a) – Inadequate consideration ‐
Allotment of rights shares – No taxable gift within the meaning
of s. 2(xii) r/w s. 4(1)(a) arose on allotment of rights shares by
assessee company to 7 investment companies out of 27
shareholders on the remaining 20 renouncing the offer.
Khoday Distilleries Ltd. v/s. CIT
(2008) 220 CTR 228 = 307 ITR 312(SC)
(2) Assessee company entered into a composite agreement with
housing society and one “G’, whereunder reversionary rights of
assessee company in land were purchased by society and in
return assessee company was to withdraw two suits filed against
society – One clause of said agreement further required society
to waive certain amount payable to it by ‘G’, who was sister of
one of directors of assessee company – GTO opined that ‘G’ was
got released by assessee company without any consideration,
accordingly , GTO taxed said released amount after allowing
statutory deduction ‐ In instant reference from records, it was
apparent that in composite agreement entered into nowhere it
was mentioned that amount payable by ‘G’ to society was to
be deducted from any amount agreement to be paid by society
to assessee company for purchase of reversionary rights –
Moreover, in said agreement nowhere assessee company asked
society to waive such amount as assessee company had not
specifically given up any claim or released any debt in favour of
‘G’ – Whether, in view of abovementioned circumstances, it
could be concluded that assessee company was ‘Person
responsible’ for getting debt of ‘G’ released ‐ Held, no ‐
Whether, moreover, fact that composite agreement was reached
with a view to put an end to all disputes between parties as
mutually agreed inter se between them, that would by itself
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179
constitute a good consideration for effecting release of ‘G’ ‐
Held, yes – Whether therefore Tribunal was right in holding
that neither a taxable gift nor a deemed gift under section 4( c)
was proved to have been made by assessee company in favour
of ‘G’ – Held, yes.
Gautam Sarabhai Ltd. , CGT v/s.
(2003) 132 Taxman 315 = 263 ITR 602 = 184 CTR 280 =
177 Taxation 58(Guj)
(3) Inadequate consideration‐Agreement for transfer of business for
five years ‐ Power to either party to terminate agreement by
giving six months notice ‐ Valuation ‐ Capitalised value of income ‐
Rule prescribing product of number of years included in period
for which gift is not revocable ‐Value of deemed gift nil as
agreement revocable with six months' notice ‐ Period during
which agreement subsisted not relevant.
Khoday Eswara and Sons v/s. CGT
(2001)251 ITR 883 = 170 CTR 553 =165 Taxation 739 =119
TAXMAN 346(SC)
(4) Surrender or forfeiture of interest in immovable property as
contemplated by clause (c) of section 4(1) or vesting of any
immovable property in another person as contemplated by clause
(d) of section 4(1) will attract provisions of section 17 of the
Registration Act ‐ Held, yes ‐ Whether, therefore, declaration
assessee sought to give gift could be said to have been made
without registered deed ‐ Held, No.
Sirehmal Nawalakha , CIT v/s.
(2001) 118 TAXMAN 316 = 169 CTR 493(SC)
(c) EXEMPTION
s. 5(1)(ii) ‐ Gift of movable proeprty situated outside the
taxable territories ‐ Gift in Jammu and Kashmir ‐ Assessee, a
resident but not ordinarily resident, transferred a sum from
his bank account at Ahmedabad to his account at Srinagar
branch of the bank, withdrew the amount and handed it over
to the donee at Srinagar ‐ All conditions necessary for claiming
exemption under s. 5(1)(ii) stand fulfilled ‐ Gift not taxable.
Dipak A. Sheth, CGT v/s.
(2001) 171 CTR 408 = (2003) 128 Taxman 577(Guj)
179
180
(d) HUF ‐ GIFT OF ANCESTRAL IMMOVABLE PROPERTY
Gift/Settlement by father in favour of married daughter – A
father can make a gift of ancestral immovable property within
reasonable limits, keeping in view the total extent of the
property held by the family, in favour of his daughter at the time
of her marriage or even long after her marriage – Question as to
whether a particular gift is within reasonable limits or not has to
be judged according to the status of the family at the time of
making a gift, the extent of immovable property owned by the
family, and the extent of property gifted – Respondent (father)
has failed to plead and prove that the gift made by him to his
daughters was unreasonable keeping in view the total holding
of the family – Thus, respondent had capacity to make gifts of
ancestral immovable property in favour of his daughters.
Kuppayee R. & Anr. v/s. Raja Gounder
(2004)186 CTR 106= 135 Taxman 37= 180 Taxation 1 (SC)
(e) GIFT TAX – (F) RE CONSTITUTION OF FIRM
(1) Chargeability – Assignment of share in partnership firm ‐ Assessee
did not retire from the firm but merely assigned 50 per cent of his
share in the firm in favour of a trust – There was no question of
transfer of goodwill of the firm – New partner agreed to share the
profits and losses of the firm – GTO was not justified in treating the
transaction as a gift.
Kamruddin M. Ravji, CGT v/s.
(2004)187 CTR 338 = 136 Taxman 278= 267 ITR 553 (Guj)
(2) Assessee assessed to Gift Tax on ground that assessees had
relinquished their respective share in firm in favour of a new partner
without adequate consideration – Deputy Commissioner and
Tribunal cancelled orders of GTO holding that new partner had
brought in capital equivalent to capital withdrawn by assessee ‐
Whether new partner had given adequate consideration for being
inducted as a partner and outgoing partners had also received
consideration i.e their capital for retiring from partnership firm –
Held, yes ‐ Therefore Tribunal was right in holding that there was
no deemed gift when assessees relinquished their share in
partnership firm in favour of new partner.
Ramniklal M. Bambhania, CGT v/s.
(2004)136 Taxman 181 =188 CTR 539 =181 Taxation 477=
269 ITR 438 (Guj)
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(3) Deemed gift under s. 4(1)(a) ‐ Inadequate consideration –
Reconstitution of partnership firm ‐ Existing partner surrendered a
portion of his share ‐ Incoming partners brought in capital to the
partnership and also undertook obligations to sincerely and
faithfully carry on the business to the common advantage of the
firm ‐ There was adequate consideration and, therefore there was
no gift.
Rameshchandra Ravjibhai, CGT v/s.
(2004) 188 CTR 543= 181 Taxation 64 = 269 ITR 146=
(2006)154 Taxman 424 (Guj)
(4) Although relinquishment of the share of profit by the assessee
partner in favour of the inducted partner amounted to a transfer,
it cannot be said that it was for inadequate consideration so as to
amount to a taxable gift within the meaning of s. 4(1)(a) –
Incoming partner contributed Rs. 25,000 towards her share of
capital – Mere fact that upon reconstitution of the firm the share of
assessee partner decreased cannot lead to the inference that it gifted
the difference to the incoming partner ‐ Contribution towards the
capital together with the obligation to participate in the business for
common advantage of the firm was adequate consideration for re‐
allocating the share of the profits and giving 12 per cent share in
favour of the incoming partner – Hence, there was no taxable gift
within the meaning of s. 4(1)(a).
Sree Narayana Chandrika Trust v/s. CGT
(2003) 180 CTR 395=261 ITR 279 = 129 Taxman 477 =
175 Taxation 639 (SC)
(5) Reduction of share in partnership firm – Assessee partner was 80
years old and totally blind and, therefore, physically unfit for
continuing as a partner to the firm – Share of assessee reduced from
25 per cent to 4 per cent – No taxable gift is involved.
Maneklal Hargovandas Patel, CGT v/s.
(2002) 177 CTR 552 =124 Taxman 55 = 171 Taxation 630 =
(2003)264 ITR 592 (Guj)
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(6) Assessee retiring from business and passing on his share in the firm
to other Partners – AO treating reduction in shares of the assessee
as a deemed gift – Held, in view of the judgment of the Apex Court
in the case of CGT v/s. T.M Louiz (2002) 245 ITR 831, gift tax not
leviable.
Arvindkumar Chandulal , CGT v/s.
(2002)171 Taxation 690=123 Taxman 1107= 178 CTR 537=
(2003)264 ITR 594(Guj)
(f) GIFT TAX – RETIREMENT OF PARTNER
Upon his retirement from the firm assessee withdraw the capital –
There was no gift of his capital in favour of his mother, the incoming
partner, or his brother whose share stood increased on assessee’s
retirement – Also, thee was not transfer of property from the
assessee to his mother and brother as the goodwill of the firm
continued remain that of the firm notwithstanding the change of
partners – Assessee not liable to gift tax.
Arunbhai Hargovandas Patel, CGT v/s.
(2003) 179 CTR 420 = 173 Taxation 182 = 264 ITR 586(Guj)
(g) GIFT – REVOCATION
Variations made in trust deed vis‐à‐vis creation of new trust ‐
Though the trust was irrevocable for six years and one day as
mentioned in the original trust deed dt. 11th April, 1961, it continued
to exist even thereafter and was not revoked ‐ Deed of 31st Dec.,
1970 had the effect of merely substituting subordinate clauses
and making the deed irrevocable – Property that was transferred to
the trustees for perfecting the trust had never reverted to the
settlor because that part of the trust deed continued to operate –
No fresh trust was created nor was the property again transferred
in the name of the trustees – Trustees remained the same ‐ Even
if the trustees had changed that property would have vested by
operation of law to new trustees by virtue of the provisions of s. 75
of the Indian Trusts Act – Merely by change in the manner of
disposition of the trust property, without affecting the creation of
the trust and the trust property which already vested in the
trustees, the trust itself cannot be said to be revoked or the
property cannot be said to have been reverted to the settlor –
Therefore, assessee settlor was not liable to gift tax on account of
such variation – Members of the Tribunal deprecated for making
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acrimonious comments against each other after expressing
differing opinions on the controversy involved.
Nandkishore Sakarlal, CGT v/s.
(2003) 184 CTR 27= 132 Taxman 325 =176 Taxation 695 =
264 ITR 453 = (2003) 264 ITR 592 (Guj)
(h) GIFT TAX ACT – MEANING OF GIFT
Trust created by assessee for her sole benefit – Properties settled
on trust transferred to trustee – Income from properties to be
given to assessee for a period of thirty years and thereafter corpus
of trust also – Corpus to be distributed to her relatives only if
assessee not alive – Trustee holds property for benefit of
beneficiary, i.e assessee herself – Interest in property does not
pass ‐ No gift liable to tax.
Bhavna Nalinkant Nanavati v/s. CGT
(2002) 255 ITR 529 = 174 CTR 152 (Guj)
(i) GIFT TAX ACT – TRANSFER
Exercise of power of appointment by beneficiary of trust – Provision
of s. 2(xxiv), even prior to its amendment w.e.f 1st April, 1980,
referred to the exercise of power of appointment – Words “in favour
of any person other than donee of the power” qualifies the words
“exercise of power” and not the words “power of appointment”– A
was vested with power to transfer the slice “A” funds of the trust
without any limitation and the power was capable of being
exercised in favour of A herself also – On 31st March, 1976 – A
exercised the power of appointment in favour of four trusts which
were not beneficiaries of the original trust ‐ They were certainly
the persons other than the donee of the power – Ingredients of s.
2(xxiv) clearly satisfied ‐ Circular No. 281, dt. 22nd Sept., 1980,
cannot be interpreted as laying down that for the period prior to
1st April, 1980 exercise of general power of appointment was
outside the scope of s. 2(xxiv) (c ) – It is the date of exercise of
power of appointment which is the material date and not the date
on which the consequences of the exercise of power would flow –
Thus, transfer of property did take place in the year ended 31st
March, 1976 i.e asst. yr. 1976‐77 – Admittedly, the said four trusts
were not beneficiaries covered by the trust deed ‐ Therefore, the
contention that gift tax was already paid at the time when the
original trust was settled and there was no obligation to pay gift tax
again is not tenable – By exercising power of appointment only the
right of A to receive the trust funds came to be transferred and not
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the corpus of the trust fund – Hence, GTO was not justified in
levying gift tax on the value of the entire corpus.
Anarkali Sarabhai (Late) v/s. CGT
(2002) 177 CTR 324 (Guj)
(j) VALUATION OF SHARES
Unquoted equity shares – Allicability of r. ID – Rule ID of WT Rules,
1957 providing for valuation of unquoted shares by break up
method is mandatory – Tribunal not justified in directing the GTO
to value the shares according to the yield method.
Mohanlal Chaturbhuj, CGT v/s.
(2002) 178 CTR 71 = 171 Taxation 284 = 123 Taxman 993 = (Guj)
(k) GIFT ‐ VALIDITY
Gift – Validity‐ Gift to minor ‐ There is no prohibition in law that
ownership in property cannot be gifted without its possession and
right to enjoyment ‐ Clause (d) of s.6 Transfer of Property Act is not
attracted to a property absolutely owned by a person and the
enjoyment of which is not restricted to the owner personally – Gift
deed was not ineffectual merely because the donor had reserved to
herself the possession and enjoyment of the gifted property –
Transfer of Property Act does not prohibit transfer of property to a
minor Last part of s. 127 clearly indicated that a minor, though
incompetent to contract, is competent to accept a non‐onerous gift
– When a gift is made to a child, generally there is presumption of
its acceptance without any overt act because express acceptance in
this case is not possible – Knowledge of gift deed to both the parents
as natural guardians and the donee himself is sufficient to indicate
acceptance of gift by the minor himself or on his behalf by the
parents – Such acceptance is confirmed by its non‐repudiation by his
parents or by donee on attaining majority consequently, gift having
been duly accepted in law and thus, being complete, it was
irrevocable under s. 126 of the Transfer of Property Act – It was,
therefore not competent for the donor mother to have cancelled
the gift in favour of her minor son and execute a will in relation to
the gifted property.
Balakrishnan K. v/s. Kamalam K. & Ors.
(2004)186 CTR 209 = 135 Taxman 48 =181 Taxation 574 (SC)
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185
46. HINDU UNDIVIDED FAMILY
(a) AOP or HUF
HUF or individual property ‐ Impartible Estate ‐ Impartible estate ‐
Applicability of s. 4(6) ‐ Legal title of the impugned property
vested in the dynasty as per the terms of the covenant and did
not devolve upon a single heir ‐ Such property therefore lost its
characteristics of being an impartible estate by operation of the
provisions of s.4 of the Hindu Succession Act and did not fulfil
the description of the property which could be brought within the
purview of the provisions of s. 4(6)‐Thus, assessee could not be
treated as holder of impartible estate for the purpose of s.4(6).
Mayurdhwajsinghji v/s. CWT
(2001) 171 CTR 411 =(2002) 253 ITR 621 =166 Taxation 329=
(2003) 126 Taxman 307 (Guj)
(b) PARTITION – PARTIAL OR COMPLETE
(1) Partition – In view of provisions of section 171(9) introduced
with effect from 1‐4‐1980, Assessing Officer was justified in
refusing to recognize partial partition claimed to have taken
place amongst members of HUF on 3‐3‐1979 – Tribunal was not
right in law in directing Assessing officer to pass an order under
section 171 for partial partition.
Maganlal Mohanlal Panchal, CIT v/s.
(2002) 124 Taxman 34 =(2003) 172 Taxation 363(Guj)
(2) Share income of HUF from firm partitioned – Share falling to
unmarried coparcener–Marriage of Coparcener – HUF consisting
of sole coparcener and his wife‐ Absence of son irrelevant–Share
income received on partition assessable in the hands of HUF.
Parshottamdas K. Panchal , CIT v/s.
(2002) 257 ITR 96 = 176 CTR 586 = 170 Taxation 653=
(2003) 127 Taxman 565 (Guj)
(c) Partial partition ‐ Bar of s. 171(9) ‐ Income of bigger HUF or
smaller HUFs ‐ Partial partition took place after 31st Dec. 1978 in
assessee ‐ HUF which was partner in three firms ‐ Three
members separated from the HUF taking away respective
portions of their shares in the firms ‐ Fresh partnership
deeds were executed by incorporating the necessary changes ‐
Whole of the shares of profit of the original HUF assessable in
the hands of HUF and not the diminshed shares in the firms ‐
Interest income earned by the alleged smaller HUFs was also
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186
includible in the total income of the assessee ‐ Full effect to the
prohibition contained in sub‐s. (9) of s. 171 has to be given in
determining the tax liability of the erstwhile HUF as it existed
prior to partial partition.
Punjalal L. Shah (HUF) v/s. CIT
(2001)170 CTR 444(GUJ)
(d) HINDU SUCCESSION ACT
(1) Individual or coparcenary property – Half share of the deceased in
coparcenary property devolved upon all his heirs and legal
representatives as one of his two sons was born prior to coming
into force of Hindu Succession Act, 1956 ‐
Sheela Devi & Ors., v/s. Lal Chand & Anr.
(2006)206 CTR 149 =157 Taxman 527=(2007)197 Taxation 395
(SC)
(2) Hindu female dying intestate ‐ Property inherited by hindu female
from father or mother ‐ Death of such hindu female without any
children ‐ Property would devolve on heirs of father ‐ Property
inherited by hindu female from husband or father‐in‐law ‐ Death of
such hindu female without any children ‐ Property would
devlove on heirs of husband ‐ Such rule applies even to property
inherited before commencement of Act ‐ Hundu Succession Act,
1956, s. 15(2)(a), (b).
Bhagat Ram v/s. Teja Singh
(2001) 252 ITR 324(SC)
47. INCOME
(a) ACCRUAL
(1) Interest on deferred purchase consideration – Assessee
following mercantile system of accounting selling its business
to its wholly owned subsidiary on deferred payment basis
with stipulation of payment of interest w.e.f 1 st July, 1977 in
view of resolution dt. 30 th June, 1978 to defer payment of
interest, no interest can be said to have accrued to assessee for
asst. yr. 1980‐81.
Sarabhai Holdings (P) Ltd., CIT v/s.
(2008) 219 CTR 644= 307 ITR 89 = 175 Taxman 82 = 14 DTR 137=
11 RC 593 = (2009) 208 Taxation 351 (SC)
186
187
(2) Sale of plots vis‐à‐vis method of accounting – In the absence of any
allegation or anything else to indicate that the method of accounting
followed by the assessee results in under estimation of profits/net
income, it has to be accepted that the income from the sale of plots
accrued to the assessee only on the date of conveyance and not at
the time of execution of tripartite agreement when the assessee
received consideration.
Realest Builders & Services Ltd., CIT v/s.
(2008)216 CTR 345=170 Taxman 218 =307 ITR 202=
209 Taxation 132 = 7 DTR 97 (SC)
(b) BUSINESS INCOME OR CAPITAL GAINS
(1) Period of formation ‐ Income from house property, guest house,
charges for equipment and recoveries from contractors for supply
of water and electricity ‐ Received during period of formation ‐
Capital receipts and not income ‐ To be adjusted against project cost
for main business –
Bongaigaon Refinary and Petrochemicals Ltd. v/s. CIT
(2001) ITR 251 329(SC)
(2) Power subsidy to new industries ‐ Based on consumption per unit
for small scale industry and percentage of electricity charges for
medium and large industries subject to specified limits ‐ Revenue
receipt ‐ Is benefit arising out of business ‐ Income Tax Act, 1961, s.
28(iv).
Rajaram Maize Products., CIT v/s.
(2001) 251 ITR 427(SC)
(3) Section 4 of the Income Tax Act, 1961 ‐ Income ‐ Assessable as ‐
Assessee earned interest on deposit made to open a letter of
credit for purchase of machinery required for setting up its plant
‐ Whether deposit of money was directly linked with purchase
of plant and machinery and, therefore, any income earned on such
deposit was incidental to acquisition of assets for setting up of
plant and machinery ‐ Held, yes ‐ Whether thus interest was a
capital receipt which would go to reduce cost of asset ‐ Held, yes.
Karnal Co‐operative Sugar Mills Ltd. , CIT v/s.
(2001) 118 TAXMAN 489(SC)
Also see under head “Business Income”.
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188
(c) CAPITAL OR REVENUE RECEIPT
Subsidy for setting up or expansion of sugar mills – Incentive subsidy
under a scheme floated with a view to boost the tempo of
establishing new sugar factories and substantial expansion of existing
factories and to facilitate repayment of term loans for that purpose
was capital in nature, notwithstanding the mechanism of price and
duty differential through which it was routed.
Ponni Sugars & Chemicals Ltd. & Ors., CIT v/s.
(2008) 219 CTR 105 = 174 Taxman 87 = 306 ITR 392= 13 DTR 1=
(2009) 208 Taxation 59 (SC)
(d) GENERAL PRINCIPLES
(1) Income tax Act ‐ Unless benefit or receipt made taxable – Not
taxable as income.
Infosys Technologies Ltd., CIT v/s.
(2008) 297 ITR 167 =166 Taxman 204 =204 Taxation 13 =
214 CTR 293 = 1 DTR 330 (SC)
(2) Trading receipts – Co‐operative Society engaged in manufacture and
sale of sugar – Deposits received from members – To be utilized by
society only in repayment of loans taken by society from
Government and financial institutions or to fully repay Government’s
contribution towards capital – Interest payable on deposits –
Deposits transferable, returnable to member one year after ceasing
to be member and heritable on member’s death – Deposits are not
trading receipts of society.
Siddheshwar Sahakari Sakhar Karkhana Ltd. V/s. CIT
(2004) 270 ITR 1 = 139 Taxman 434 =191 CTR 66 =
183 Taxation 477 (SC)
(3) Manufacture and sale of sugar– Amount set apart as required by
Molasses Control Order towards molasses storage reserve fund ‐
Not includible in total income.
New Horizon Sugar Mills P. Ltd. , CIT v/s.
(2004) 269 ITR 397 = 141 Taxman 254(SC)
(4) Outgoings cannot be treated as income – Modvat credit available
to assessee manufacturing goods with duty paid raw materials ‐
Not income liable to be taxed.
Indo Nippon Chemical Co. Ltd., CIT v/s.
(2003)261 ITR 275 =182 CTR 291 =130 Taxman 179 =
176 Taxation 1 (SC)
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189
(5) Addition – Tax avoidance by selling goods to sister concerns at low
prices – Goods were sold by the assessee to its sister concerns at
prices much below the prevailing market prices and the same goods
were immediately sold to third parties at a substantially higher rate
and in the same lot – Said findings of fact have become final –
Tribunal was right in coming to the conclusion that tax was avoided
by the assessee – It was not necessary for the Tribunal to ascertain
whether any loss was caused to the Revenue on account of non –
inclusion of income in question in the assessee’s assessment and its
inclusion in the assessment of the sister concerns.
Patel Chemical Works v/s. CIT
(2003) 184 CTR 288 = 177 Taxation 71= (2004) 265 ITR 273 =
134 Taxman 694 =(2008) 14 DTR 21 (Guj)
(6) Contract with Government for executing certain works – Dispute –
Arbitration – Award – Interest on compensation awarded – Is income
in nature – Assessable as business receipt .
B.N Agarwala and Co., CIT v/s.
(2003) 259 ITR 754 = 180 CTR 311 = 129 Taxman 78(SC)
(7) Assessee receiving cash assistance – Tribunal holding in favour of
assessee – Held, in view of insertion of clause (iiib) in section 28
with retrospective effect from 1st April, 1967, cash assistance is a
revenue receipt.
Deversons P. Ltd., CIT v/s.
(2003)175 Taxation 513 =260 ITR 336 = 2002)124 Taxman 472 (Guj)
(8) Additions to income – Compensation money received by other
coparceners was held by Tribunal to be not belonging to assessee
and, hence, addition of interest to such amount was deleted ‐
Whether in view of fact that in similar controversy involving very
same assessee, Court had directed Tribunal to decide appeal
afresh, instant question referred was to be remanded back to
Tribunal to decide it afresh – Held, yes.
Chanchalben (Smt), CIT v/s.
(2002) 124 Taxman 476(Guj)
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190
(9) Section 28(i) of the Income Tax Act, 1961 – Business Expenditure ‐
Chargeable as – Assessee claimed deduction of trading receipt of
excise duty received by him as part of sale price, contending that it
had received said amount on condition that deposit should be
refunded to buyer in case it was not finally paid by assessee–
Whether excise duty received by assessee as part of sale price would
be assessable as trading receipt in assessee’s hands – Held, yes –
Assessee would be entitled to claim deduction when occasion for
same arose and it was for assessee to raise claim before Tribunal.
Plastic Products Engg. Co. v/s. CIT
(2002) 125 Taxman 541(Guj)
(e) OTHER SOURCES
(1) Chargeable as ‐ Assessment years 1986‐87, 1987‐88 and 1989‐
90 – Assessee trust took on lease a partly constructed
building and after completing construction work rented out
whole premises to Posts and Telephone Department ‐ In its
return of income it showed rental income as income from
house property – Assessing Officer however held that trust was
created for specific purpose of leasing out property with
intention to sublet in order to earn profit and therefore
income was taxable as business income ‐ Whether since
assessee was merely a lessee and not owner of property rental
income from said property could not be taxed under head
income from house property in its hands – Held, yes ‐ Whether
further since assessee at no point of time had indulged in any
systematic activity so as to treat it as having indulged in
business or a venture in nature of business income from
property could not be taxed as business income and therefore
income was liable to be taxed as income from other sources –
Held, yes ‐
Harikrishna Family Trust v/s. CIT
(2008) 173 Taxman 170 = 306 ITR 303(Guj)
(2) Business income, income from property or income from other
sources – Assessee trust lessee of property – Income from sub‐lease
‐ No systematic business activity – Income from sub‐lease not
business income ‐ Assessee not owner of property – Income not
assessable as income from house property – Income assessable as
income from other sources – Income tax, 1961, ss. 22, 28, 56.
Rohitasava Chand v/s. CIT
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191
(2008) 306 ITR 303(Guj)
(f) TIME OF RECEIPT – INTEREST ON SECURITIES
Chargeability – Accrual vis‐à‐vis receipt basis – Second proviso to
s. 145 inserted w.e.f 1st April, 1989 clearly provides that any income
by way of interest on securities would be chargeable to tax as the
income of the previous year in which such interest is due to the
assessee only where no method of accounting is regularly employed
by the assessee ‐ Thus, if the assessee is maintaining cash system
of accounting aforesaid proviso would not apply – This
amendment appears to be more clarification in nature than making
any departure from the previous law on the subject ‐ Further, the
provisions of s. 193 require the company making the payment of
interest and not when the amout is due ‐ Thus, the legislative
intent is that when the assessee is maintaining cash system of
accounting, income by way of interest on securities is to be charged
to tax only when the assessee actually receives the interest and
not on the date on which interest might become due – In the instant
case, accounts were admittedly maintained on cash system for which
AO had granted permission – Assessees, who were bondholders of
ASE Ltd. and R Ltd. admittedly did not receive any interest or any
amount in lieu of interest in the years under consideration – Interest
on debentures was therefore liable to be considered as income only
when received by the assessee.
Upnishad Investment (P) Ltd. & Ors., CIT v/s.
(2002) 177 CTR 176 = 171 Taxation 669 =(2003)260 ITR 532=
131Taxman 20 (Guj)
(g) UNEXPLAINED MONEY
(1) Search in premises of firm run by depositor – Unaccounted money
seized – Deposits made by firm in the names of third persons related
to depositor – Person in whose name deposits made – Onus to
prove source of deposits on such person – Failure to explain source
of deposits – Money deemed to be income of such person.
Chinnnathamban K., CIT v/s.
(2007)292 ITR 682 = 211 CTR 86 = 162 Taxman 459 =
201 Taxation 157 (SC)
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192
(h) UNDISCLOSED SOURCES
(1) Rough estimates and estimation for shops for submission to bank to
obtain loan – Difference between estimation and books of account
– Assessing Officer drawing inference that assessee received on
money – No evidence – Rates of all shops at time of actual sales
cannot be same as in rough estimate – Concurrent finding that on
basis of rough estimates no addition could be made – No
interference ‐ Income tax Act, 1961, s. 132.
Maulikumar K. Shah, CIT v/s.
(2008) 307 ITR 137(Guj)
(2) Addition under s. 69 ‐ Alleged unaccounted sales – In absence
of any material on record to show that there was any
unexplained investment made by the assessee which was
reflected by the alleged unaccounted sales, the finding of the
Tribunal that only the GP on the said amount can be brought
to tax does not call for any interference.
Gurubachhan Singh J. Juneja, CIT v/s.
(2008)215 CTR 509 =302 ITR 63 =205 Taxation 264 =171 Taxman
406 (Guj)
(3) Addition under s. 69 ‐ Excess stock found by excise authorities –
Tribunal having reversed the findings recorded by CIT(A) and deleted
the addition in respect of unexplained stock found at assessee’s
premises without dealing with the reasoning of the CIT(A) and
without showing as to how the order of the CIT(A) is incorrect,
impugned order of the Tribunal is quashed and set aside and the
appeal is restored to the Tribunal for being decided afresh.
C. Lajpatrai Ltd. , CIT v/s.
(2007)212 CTR 292(Guj)
(4) Addition – Cost of construction of building – AO estimated cost
of construction of additional floors constructed ‐ CIT(A) as well
as the Tribunal have come to concurrent findings of fact that
the cost of construction as worked out by the assessee was
fair and reasonable – No material brought on record to
dislodge the said findings – Addition rightly deleted.
Nathubhai H. Patel, CIT v/s.
(2006)201 CTR 102=154 Taxman 113=193 Taxation 114 =
285 ITR 67 (Guj)
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193
(5) Addition under s. 69 – Presumption under s. 132(4A) vis‐à‐vis
burden of proof – Clause (iii) of s. 132(4A) raises a
presumption in relation to signature and handwriting to be of
the person in whose handwriting the books, etc. are
purportedly written – Unlike cls. (i) and (ii) this clause does not
necessarily raise a presumption qua the person searched or
from whose possession the books are found – Thus, there
could be no presumption that the seized books and documents
are in the handwriting of the assessee – Further, for making
addition under s. 69 it is necessary to show that investments
have been made in the financial year immediately preceding
the relevant assessment year and the same are not recorded
in the book – Even if presumption available under s. 132(4A)
can be raised against the assessee, the pre‐requisite
conditions of s. 69 have to be satisfied for making the addition
and cannot be presumed to have been established on the basis
of s. 132(4A) – Tribunal was not justified in remanding the
matter to CIT(A) without dealing with applicability of s. 132(4A)
vis‐à‐vis s. 69 – Matter is restored to the Tribunal to rehear
the appeal.
Ushakant N. Patel v/s. CIT
(2006) 201 CTR 501 = 282 ITR 553= 154 Taxman 55(Guj)
(6) Alleged fictitious purchases of raw material – Finding recorded by
the Tribunal that the purchase of raw material cannot be doubted as
the Revenue has not disputed the details of the closing stock and
that there was no material on record to conclude that besides the
alleged fictitious purchases there were other purchases for the same
materials under different invoices which could be reflected in the
closing stock – Thus, the finding of the Tribunal that no addition was
warranted on account of alleged fictitious purchases was solely
based on appreciation of evidence and records – No interference is
called for.
Kashiram Textile Mills (P) Ltd., CIT v/s.
(2006) 202 CTR 293 = 284 ITR 61 = 193 Taxation 438 =
(2007)160 Taxman 4 (Guj)
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194
(7) Addition – Alleged suppression of stock – AO made addition
towards value of certain steel rounds purchased by assessee but
not shown as closing stock, rejected the explanation of the assessee
that the steel rounds had been received at an earlier point of
time and had been consumed in the construction work carried on by
the assessee ‐ On appeal CIT(A) found that the assessee was
receiving building material from the supplier as and when required
but the bills were raised at a later point of time and thus the dates
of delivery of certain materials differed from the dates mentioned
in the corresponding bills – CIT(A) found that the AO has failed to
bring on record any evidence to draw an adverse inference vis‐à‐vis
items purchased vide a particular bill – CIT(A) also found that if the
addition made by the AO is upheld, the GP rate in the adjusted
trading account would get enhanced to 19.3 per cent whereas the
GP rate in this type of cases is around 16 per cent as found by the
AO himself and, therefore, addition for the alleged undisclosed
closing stock was not warranted – Aforesaid findings upheld by the
Tribunal – There is no infirmity in the concurrent findings of fact
recorded by the appellate authorities ‐ Even otherwise, the
aforesaid findings are findings of fact arrived at after appreciating
the evidence on record and no question of law is involved.
P. Pravin & Co., CIT v/s.
(2005) 193 CTR 213 = 144 Taxman 210 = 274 ITR 534 =
186 Taxation 43 (Guj)
(8) Addition ‐ Alleged suppression of production/sales – Regular
books of account along with records of stock as required
under the excise law have been maintained by the assessee ‐
Correctness of book results relating to production of oil and
oil cakes has been accepted in the past – Neither the excise
authorities nor the sales tax authorities have found any
discrepancy in the records maintained by the assessee – Even
the surprise checks by the officials of the Civil Supplies
Department have not revealed any irregularity in the
maintenance of stock – Tribunal has accepted the fact that
the yield of oil cakes depend on the quality of groundnut
which is likely to vary due to several reasons – Tribunal has
further found that the AO has not pointed out any specific
omission or suppression in the assessee’s books of account –
Findings recorded by the Tribunal are supported by evidence
194
195
available on record – Tribunal was justified in upholding the
finding of CIT(A) deleting the additions.
Sanjay Oil Cake Industries , CIT v/s.
(2005) 197 CTR 520 = 149 Taxman 190=
(2006) 190 Taxation 476 = (2008) 10 DTR 153 (Guj)
(9) Addition under s. 69 – Natural justice – AO making addition of
Rs. 67.75 lakhs towards undisclosed investment as revealed in
search proceedings of LT Group ‐ CIT(A) setting aside
assessment on the ground that only three days time was given
to assessee and remanding the matter – While reframing set
aside assessment AO excluded the addition of Rs. 67.75 lakhs
but made an altogether new addition of Rs. 137 lakhs – In
second round of appeal, CIT(A) set aside addition of Rs. 137
lakhs but issued enhancement notice in respect of Rs. 67.75
lakhs – It is at this stage that the assessee produced passbook
issued by LT Group – CIT(A) making the addition of Rs. 67.75
lakhs and Tribunal sustaining the same on the ground that
assessee did not produce the passbook during original
assessment proceedings – Not justified – In the facts and
circumstances, assessee was prevented by sufficient cause
from producing the passbook at any stage prior to the
appellate stage in the second round ‐ Matter remanded to
the Tribunal to provide proper opportunity to the parties.
Nitin P. Shah alias Modi v/s. Dy. CIT
(2005)194 CTR 306=276 ITR 411=146 Taxman 536=
187 Taxation 390 (Guj)
(10) Addition under s. 69 – Unexplained investment in property –
Last page of the diary recovered from assessee’s premises
mentioned complete particulars of the property purchased by
the assessee, including its area ‐ Therefore, the contention of
the assessee that there is a mistake in mentioning the
amount of sale consideration does not merit acceptance –
Admittedly, all other pages except the last page of the diary
are in the handwriting of the assessee’s husband – Thus,
burden was on the assessee to explain as to who had made
the noting on the last page – Both assessee and her husband
pleaded ignorance about the identity of the person who had
made such noting in the diary – Explanation offered by the
assessee cannot be said to be satisfactory – Assessee’s version
195
196
cannot be accepted on the solitary ground that no acquisition
proceedings were initiated after submission of Form No. 37G –
Assessee having failed to place any evidence on record to
show that the position was to the contrary, Tribunal was right
in confirming the addition on the basis of notings in diary.
Ramilaben Ratilal Shah v/s. CIT
(2005) 199 CTR 340=282 ITR 176 =(2006) 52 Taxman 351 =
192 Taxation 351 (Guj)
48. INCOME TAX PROCEEDINGS – POWER TO CALL FOR INFORMATION
(1) Information on points or matters useful for proceedings – Scope of
provisions ‐Pending proceedings not necessary before issuing
notice calling for information Approval of Director or
Commissioner sufficient if no proceedings pending – Income Tax Act,
1961, s. 133 (6), Second proviso.
Karnataka Bank Ltd. v/s. Secretary, Government of India,
Manipal Co‐op. Bank Ltd. v/s. ITO & Ors.,
South Canara District Central Co‐op. Bank Ltd. v/s. ITO & Ors. &
Gurusiddheshwar Co‐op. Bank Ltd. v/s. ITO & Ors.
(2002) 255 ITR 508 = 123 Taxman 219 = 175 CTR 405 =
(2003) 172 Taxation 476 (SC)
(2) Section 131, read with sections 133 & 142 the Income Tax Act, 1961
– Income Tax Authorities ‐ Powers regarding discovery production
of evidence etc. – Power of Assessing Officer under sections 131(1)
and 133(6) is distinct from and does not include the power to refer
a matter to the Valuation Officer under section 55A nor does section
142(2) allow him to do so – A report by Valuation Officer under
section 55A cannot be the result of an inquiry by the Assessing
Officer under provisions of section 133(6) or section 142(2) ‐ Power
of inquiry granted to an Assessing Officer under sections 133(6) and
142(2) does not include power to refer matter to Valuation Officer
for an enquiry by him .
Amiya Bala Paul (Smt) v/s. CIT
(2003)130 Taxman 511=182 CTR 489= 262 ITR 407 =
176 Taxation 221 (SC)
196
197
49. INDUSTRIAL COMPANY
(1) Construction activity – Tribunal categorically found that the AO
has granted investment allowance to the assessee, a
construction company, in respect of plant and machinery used
in construction business and the said action has not been
challenged or disturbed in any manner whatsoever ‐ Hence,
the finding of the Tribunal that the assessee has to be held to
be an industrial company is upheld without going into the
merits of the controversy.
Advance Construction Co. (P) Ltd., CIT v/s.
(2004) 193 CTR 127 = 143 Taxman 61=275 ITR 30 =
186 Taxation 55(Guj)
(2) Assessee had undertaken contracts from Gujarat Mineral
Development Corporation, (GMDC) for removal of overburden and
earth excavation in lignite mineral areas of GMDC – Assessee
claimed benefit of lower rates of income tax on ground that it was
an industrial company engaged in mining which was rejected by ITO
– As per agreement between parties, depth of earth which was
required to be excavated by assessee ranged from 8 to 30 metres
which was required to be done so as to expose lignite mineral for
further mining by GMDC – Entire earth excavation work which was
to be done by assessee was required to be done as prescribed
under mining rules/regulations and was to be carried out under
instructions issued from time to time by mines mangaer/engineer‐
in‐charge of GMDC – On facts, assessee had satisfactorily
discharged burden of showing that it was a company, which was
mainly engaged in activity of mining and, therefore, an industrial
company as defined by section 2(7)( c) and was entitled to benefit
claimed..
Sundeep Construction (P) Ltd., CIT v/s.
(2004)137 Taxman 287 =189 CTR 440 =269 ITR 343 =
182 Taxation 112 (Guj)
(3) Processing of tobacco leaves – Assessee’s business consists of
crushing large tobacco leaves and cutting into smaller pieces,
sieving them, i.e removing the dust and unwanted stems from the
tobacco leaves, and selling them to the Bidi manufactures ‐ Same
197
198
involves manaufacutring or processing of goods – Assessee is,
therefore an industrial company.
Gordhanbhai Jethabhai Tobacco Industrial (P) Ltd., CIT v/s.
(2002) 177 CTR 339 = 123 Taxman 825 = 171 Taxation 296 =
258 ITR 727 (Guj)
(4) Purchasing, feeling, freezing and exporting shrimps ‐ Whether
involves production or manufacture ‐ No material produced
regarding the stages through which the shrimps passed as
processes involving production or manufacture ‐ Assessee not
industrial company ‐ Not eligible to be taxed at lower rate of
Income Tax ‐ Finance Act, 1981, s. 2(7)(c).
Kala Cartoons P. Ltd., CIT v/s.
(2001) 252 ITR 658(SC)
50. INTEREST PAYABLE BY ASSESSEE
(a) BORROWED CAPITAL
(1) Interest free loan to sister concern – Interest on borrowed
funds cannot be disallowed if the assessee has advanced
interest free loan to a sister concern as a measure of
commercial expediency ‐ What is to be seen is “business
purpose” and what the sister concern did with the money
advanced.
S.A Builders Ltd. v/s. CIT(A) & Anrs.
(2006) 206 CTR 631=(2007)288 ITR 26= 158 Taxman 74
=197 Taxation 20(SC)
(2) Assessee a subsidiary of a holding company – Interest paid
by assessee to holding company ‐ Necessary entry made
during accounting period – Finding that assessee had
incurred losses and no benefit was derived by paying
interest – Holding company paying tax on interest ‐
Interest deductible ‐ Income Tax Act, 1961, s. 36(1)(iii).
Nima Ltd. , CIT v/s.
(2005) 278 ITR 588 =199 CTR 360=
(2006) 190 Taxation 335 =153 Taxman 212 (Guj)
(3) Financing company ‐ Borrowing huge sums of money – Interest
free loans to sister concern ‐ Disallowance of part of interest on
borrowed money – Appeal to High Court ‐ Decision affirming
disallowance on the basis that assessee failed to furnish Bank
statement to examine whether loans were given out of borrowed
198
199
money – Statement in fact produced before authorities and on
record ‐ Appeal to Supreme Court – High Court’s decision set
aside.
Motor General Finance Ltd. v/s. CIT
(2005) 267 ITR 381=189 CTR 297=138 Taxman 235=
183 Taxation 5(SC)
(4) Advance at lower rate of interest for business purposes – Though
the assessee company had agreed to advance only Rs. 6 lacs to
the lessor of the building taken by it on lease, additional
amount of Rs. 2.50 lacs was advanced to the lessor so as to
enable it to complete the construction of additional floors which
were to be made available to the assessee company at a low
rent – Thus, funds were advanced at lower rate of interest in
furtherance of business interest of the assessee ‐ No portion of
the interest paid by the assessee on its borrowings could be
disallowed.
Amora Chemicals (P) Ltd., CIT v/s.
(2002)178 CTR 64=125 Taxman 255=171 Taxation 505=
258 ITR 519 (Guj)
(5) Money received for charitable purposes utilised in business ‐
Revenue has not doubted the genuineness of the stand taken by
the assessee in respect of the nature of the accounts ‐ Once
the Department has accepted that the monies lying to the
credit of various accounts do not belong either to the assessee
firm or to its partners but belong to third party and such
funds are utilised for the purpose of business, interest paid
thereon is an deductible item of expenditure.
Nanalal Mansukhram, CIT v/s.
(2001) 171 CTR 490(GUJ)
(b) INTEREST TAX ACT – CHARGE – SCOPE
Provisions of Income Tax Act relating to method of accounting
adopted by assessee incorporated in Interest Tax Act – Assessee
following cash system in respect of interest income – Computation of
chargeable interest – To be on basis of total income received ‐
Kerala State Industrial Development Corpn. Ltd. v/s. CIT
(2003)259 ITR 51 = 180 CTR 192 = 128 Taxman 29 =
174 Taxation 766(SC)
199
200
(c) INTEREST ON SECURITIES
(1) Accounting – Effect of amendment of section 145 w.e.f 1‐4‐89 –
Proviso that interest on securities taxable when due where
assessee employs no regular method of accounting – Clarificatory
– Assessee regularly following cash system of accounting ‐
Interest on securities assessable only on receipt in assessment
years 1987‐88 and 1988‐89.
Upanishad Investment P. Ltd., CIT v/s.
(2003) 260 ITR 532=131 Taxman 20= (2002) 177 CTR 176 =
171 Taxation 669 (Guj)
(2) Scope of section 18 – Interest on securities issued by any
company – Assessable under section 18 .
Upanishad Investment P. Ltd., CIT v/s.
(2003) 260 ITR 532 =131 Taxman 20(2002) 177 CTR 176 =
171 Taxation 669 (Guj)
(3) Chargeability – Interest on debentures, etc. issuing by a company
– Sec. 8 of the1922 Act covered the securities of a local authority
and a company without any further reservation ‐ The 1961 Act
added “public corporations established by a Central, State of
provincial Act” and enlarged the class of persons issuing the
securities – Words “established by a Central State or Provincial
Act” qualify only the works “a corporation” and not “a local
authority or a company” – Accordingly the interest on debentures
issued by all companies whether or not established by a Central,
State or Provincial Act, is liable to be computed, is liable to be
computed as income under the head “interest on securities”.
Upnishad Investment (P) Ltd. & Ors., CIT v/s.
(2002) 177 CTR 176 = 171 Taxation 669 =(2003) 260 ITR 532=
131 Taxman 20 (Guj)
200
201
(d) PAYABLE BY ASSESSEE
(1) Interest payable to I.T‐ Interest under s. 234B‐ Chargeability –
s.115J ‐ Assessment of company under s. 115J – Interest under s.
234B is not chargeable when income is computed under s. 115J.
Madhusudan Industries Ltd., Dy CIT v/s.
(2008) 218 CTR 493 = 11 DTR 144=(2009) 208 Taxation 442 (Guj)
(2) Interest payable to I.T‐ Interest under ss. 234A and 234B –
Chargeability – Vires ‐ Payment of tax after the end of financial
year – Amount paid beyond the financial year before filing the
return cannot be deducted from the tax on total income as
determined on regular assessment for computing interest u/ss.
234A and 234B – Defaults contemplated under ss. 234A and 234B
are independent of each other and, therefore interest under both
the provisions is payable even though there is overlapping of
period of defaults.
Constitutional validity ‐ Arbitrary or unreasonable levy – There is
no arbitrariness or unreasonableness in levy of interest under ss.
234A and 234B and the provisions do not seek to impose unequal
burden on same class of persons similarly situated and therefore
the provisions of ss. 234A and 234B cannot be held to be ultra
vires the Constitution.
Roshanlal S. Jain & Ors. V/s. Dy. CIT & Anr.
(2008) 220 CTR 38 = (2009) 176 Taxman 95=309 ITR 174=
14 DTR 91(Guj)
(3) Interest payable to I.T ‐ Interest under s. 234B – Chargeability ‐
Consequent upon order of Settlement Commission – While
passing an order under s. 245D(4), the Commission exercises
powers of an IT authority as provided under s. 245F and the
assessee is liable to pay interest under s. 234B for that portion of
income forming part of the total income as determined by the
Commission which was not earlier disclosed before the AO.
Sahitya Mudranalaya & Ors. V/s. ITSC & ors.
(2008) 216 CTR 174 = 205 Taxation 307 =
175 Taxman 30 = 5 DTR 194(Guj)
(4) Interest under s. 234B ‐ Waiver or reduction ‐ Addition on account
of retrospective amendment of law – Respondent has recorded a
finding that the assessee was under a bona fide belief that
export assistance was not includible in the income and the
assessee itself requested the AO to include the same in the
201
202
taxable income after the amendment – Court having earlier held
that the assessee’s case was covered under cl. (d) of Circular No.
F. No. 400/234/1995‐IT(B), dt. 23rd May, 1996, it was not open to
the respondent to state that the said cl. (d) is broadly applicable
to the assessee – No reason has been assigned by the respondent
for part waiver and retaining the interest at Rs. 1,00,000 ‐
Respondent is directed to waive the remainder interest by passing
a fresh order.
Devarsons (P) Ltd. v/s. U.P Singh
(2006)203 CTR 48 = 284 ITR 36 =194 Taxation 627(Guj)
(5) For default in furnishing return of income – Assessment year
1991‐92 – Petitioners had to file return of income before 31‐10‐
1991 for relevant assessment year – They however, did not file
return before due date – On 19‐5‐1992, search and seizure
operation took place and their books of account were seized by
Income Tax Authorities – In June 1992, they made a request to
concerned authority for returning books of account so as to
enable them to get accounts audited and file return – Authorities
returned books of account in October 1992 – Thereafter accounts
were audited and ultimately returns were filed in march 1993 –
Assessing Officer levied penal interest under section 234A –
During period when books of account were in custody of
concerned Income Tax Authorities, petitioners could not have
filed return and, therefore they were not to be saddled with
liability to pay penal interest under section 234A for that period.
Paras Bansilal Patel v/s. Jindel (B.M)
(2004)135 Taxman 125=187CTR 613=267 ITR 108=
180 Taxation 208 (Guj)
(6) Assessee in its return claimed exemption of export cash assistance
amount on ground of same being a capital receipt – Because of
retrospective amendment taxing export cash incentive as income
Assessing Officer made addition of export cash assistance and
also levied interest under section 234B on ground that advance
tax paid by assessee under section 210 was less than 90 per cent
of assessed tax – Held, since assessee’s tax liability arose
subsequently after filing of return and after expiry of assessment
year on account of retrospective amendment of law,
consequential levy of interest under section 234B was required
to be dealt with as a fit case for reduction or waiver of interest.
Deversons (P) Ltd. V/s. Chairman, CBDT
202
203
(2004) 140 Taxman 628 = 192 CTR 400(Guj)
(7) Chargeability and computation – Computation consequent upon
settlement of case by Settlement Commission – Settlement
Commission assumes jurisdiction to deal with the matter after it
decides to proceed with the application made under s. 245C and
continues to have the jurisdiction till it makes an order under s.
245D – Contention that there is no requirement to pay interest
under s. 234B as no points of terminus have been fixed is
untenable because the levy is mandatory – Equally, the
contention that no interest is chargeable for that portion of
income which was determined by the Commission and was not
disclosed before the AO has no substance – Interest under s. 234B
has to be charged for the period beginning from the first day of
April next following the relevant financial year upto the date of
Settlement Commission’s order under s. 245D(4) on the
consolidated income i.e both disclosed and undisclosed income –
There is no question of charge of interest on interest.
Damani Bros., CIT v/s. &
Hindustan Bulk Carriers, CIT v/s.
(2003) 179 CTR 362 = 259 ITR 475= 173 Taxation 40 (SC)
51. INTEREST PAYABLE TO ASSESSEE BY I.T
(1) For delayed refund ‐ Excise duty – Interest on equitable grounds
‐Only if written demand made – Central Excise Act, 1944, s.
11BB.
Shreeji Colour Chem Industries, Union of India v/s.
(2008) 11 RC 469(SC)
(2) s. 220(2) – Waiver or reduction under s. 220(2A) ‐ Genuine
hardship and circumstances beyond the control of the assessee
‐ Department having not accepted to the request made by the
assessee to expeditiously dispose of the seized shares and
securities and to appropriate the sale proceeds towards taxes
due from him, and the CIT having not considered the question as
to whether the default in payment of demand was due to
circumstances beyond the control of the assessee in its proper
perspective, matter is remitted to CIT to reconsider the matter
relating to waiver of interest as per the provisions of s. 220(2A)
afresh.
Malani B.M v/s. CIT
(2008) 219 CTR 313 =174 Taxman 363 = 306 ITR 196= 13 DTR
203
204
186 (SC)
(3) Delay in Filing Return ‐ Interest on refund – Advance Tax paid in
excess of tax as assessed –or determined pursuant to decision of
appellate or other authorities ‐ Interest on such excess amounts
– Statutory liability – Is “amount due” to assessee ‐ Delay in
paying ‐ Interest payable also on such interest by way of
compensation – Liability of Government on General principles to
pay interest on sums wrongfully retained – Includes liability to
pay interest on interest wrongfully retained – “Wrongfully”,
meaning of ‐ Income Tax Act, 1961, ss. 214, 237, 240, 243, 244.
Sandvik Asia Ltd. v/s. CIT
(2006)280 ITR 643 = 200 CTR 505= = 150 Taxman 591=
193 Taxation 163 (SC) (SC)
(4) When no claim is needed ‐ Basic requirements.
R.R Holding P. Ltd. v/s. CIT
(2006)284 ITR 674 = 204 CTR 35 = 155 Taxman 1(SC)
(5) Attachment of bank accounts – Petitioner assessee’s FCNR/SDR
account was attached by the Department in terms of s. 281B
and the whole amount was realized by the Department out of
the said account – On a writ petition, the High Court directed
the Department to refund the amount along with “interest
accrued thereon” so as to restore the assessee to the position
that he enjoyed at last from the date of dismissal of
Department’s application under s. 256(2) against the order of
the Tribunal setting aside the assessment order whereby the
assessee became entitled to refund of the amount withdrawn
from his account – Assessee entitled to interest accordingly –
Computation of interest in terms of s. 244 or 244A by the
Revenue authorities was clearly not in compliance with the
order of the High Court – Department directed to finally
determine the actual amount which would be payable in terms
of the High Court’s order by the respondent to the assessee.
Vijay Kumar Bhati v/s. CIT & Anr.
(2003) 179 CTR 397 = 128 Taxman 54 =264 ITR 657(SC)
(6) Excess amount of tax paid pursuant to order of assessment or
penalty ‐ Interest payments under sections 215, 217 and 220(2)
– Assessee entitled to interest under section 244 (1A) in respect
of interest payments.
Gujarat State Warehousing Corpn., CIT v/s.
204
205
(2002) 256 ITR 596 = 172 CTR 546 = 166 Taxation 117 =
122 Taxman 373(Guj)
(7) Interest payable by Government – Excess amount of tax paid on
self assessment ‐ Assessee entitled to interest under section
244(1A) on payment of tax under Section 140A.
Gujarat State Warehousing Corpn., CIT v/s.
(2002)256 ITR 596 =172 CTR 546 =166 Taxation 117 =122
Taxman 373 (Guj)
(8) Deficiency in paying, Advance Tax ‐ Assessment order ‐ Direction
for charging interest for delay and deficiency ‐ Reassessment ‐
Assessment reopened only for adding income from interest ‐
Interest for delay and deficiency under direction in original
assessment order also added ‐ Appellate Tribunal holding that
interest for delay and deficiency could not be charged in
reassessment ‐ High Court ‐ Reference of question whether
direction for charging interest in original assessment does not
survive ‐ Decision of High Court ‐ Savouring of appellate
jurisdiction ‐ Decision set aside ‐ Case remanded for re‐hearing
reference ‐
Khodey Brewing and Distilling Industries Ltd.v/s.CIT
(2001)250 ITR 659(SC)
(9) Deduction of tax at source ‐ Development authority
constructing flats and allotting them to buyers ‐ Interest paid to
buyers for period of delay ‐ Failure to deduct tax at source ‐
Notice of demand for tax and recovery ‐ Development authority
an "assessee" ‐ Appellate Tribunal finding development
authority not liable to deduct tax ‐ Refund of tax recovered ‐
Interest ‐ Provision applicable to assessees applies assessee
entitled to interest.
Delhi Development Authority, ITO v/s.
(2001) 252 ITR 772 = 171 CTR 546 = 1 DTR 113(SC)
52. INTERPRETATION OF STATUTES
(1) Primary rule – Casus omissus – Not created by
interpretation.
Dharmendra Textile Processors, Union of India v/s
205
206
(2008) 306 ITR 277 = 219 CTR 617 = 166 Taxman 65 = 204
Taxation 381 = 14 DTR 114(SC)
(2) Rule of legislative intention.
Dharmendra Textile Processors, Union of India v/s
(2008) 174 Taxman 571(SC)
(3) Object and scope of – Proviso – Proper functions.
Nagar Palika Nigam v/s. Krishi Upaj Mandi Samiti
(2008) 11 RC 522(SC)
(4) Prospective or retrospective.
Gold Coin Health Food (P) Ltd., CIT v/s.
(2008) 304 ITR 308=72 Taxman 386 = 206 Taxation 147=
11 DTR 185 (SC)
(5) Rule of literal construction ‐ Plain language – If the language of
the statute is capable of a plain meaning it is not open to the
Court to add or substitute any words therein so as to give a
meaning which one or the other side thinks to be more
appropriate.
Cargo Clearing Agency v/s Jt. CIT
Kapurchand Kakaram Bansal v/s. Dy. CIT
(2008)218 CTR 541 =307 ITR 1=207 Taxation 586=12 DTR 50 (Guj)
(6) Machinery provision – Should be construed so as to be workable.
Mohammed Salim (K.P) v/s. CIT
(2008) 300 ITR 302 =216 CTR 97 =169 Taxman 465 =
207 Taxation 81 = 6 DTR 179(SC)
(7) Circulars of CBDT ‐ Opinion of Minister introducing the Bill.
R & B Falcon (A) Pvt. Ltd. V/s. CIT
(2008) 301 ITR 309 = 216 CTR 289 = 169 Taxman 515 =
206 Taxation 241 = 6 DTR 313 (SC)
(8) Where two interpretations possible – Court will adopt that in
favour of tax payer.
Pradip J. Mehta v/s. CIT
(2008) 300 ITR 231 = 216 CTR 1 = 169 Taxman 454=
206
207
206 Taxation 169 (SC)
(9) Legal fiction – Taxing statute – To be construed on basis of object
sought to be achieved.
Ishikawajima‐Harima Heavy Industry Ltd. v/s. Director of
Income Tax, Mumbai
(2007)288 ITR 408 = 207 CTR 361=8 RC 149 = 158
Taxman 259 =198 Taxation 103 (SC)
(10) Plain meaning of statute to be considered ‐
Mugat Dyeing & Printing Mills v/s. Asstt. CIT
(2007) 290 ITR 282 = 207 CTR 606=
198 Taxation 439 (Guj)
(11) Taxing provision – Principle of strict construction – Where
two interpretations possible construction in favour of
taxpayer to be adopted.
Manish Maheshwari v/s. Asst. CIT
Indore Construction (P) Ltd. v/s. CIT
(2007) 289 ITR 341=208 CTR 97= 8 RC 455 =
199 Taxation 284 = (2008) 204 Taxation 205 (SC)
(12) Statute to be construed as a whole ‐ No part to be rendered
inoperative by another provision.
Krishi Utpadan Mandli Parishad v/s. I.T.C Ltd.
(2007) 9 RC 275(SC)
(13) “Includes” used in definition clause Scope of‐
Rajasthan Taxchem Ltd., Commercial Taxation Officer v/s.
(2007) 8 RC 312(SC)
(14) Rights under old law – Continue to operate unless there is express
or implied inconsistent provision in new law ‐
Baraka Overseas Traders v/s.
Director General of Foreign Trade.
(2007) 8 RC 205(SC)
(15) Taxing statute ‐ Strict construction – Two interpretations
possible – Provisions interpreted in favour of taxpayer ‐
Machinery provision – construed so as to make provision
workable.
207
208
Mahim Patram Pvt. Ltd. v/s. Union of India
(2007) 8 RC 364(SC)
(16) Contemporanea expositio – Tax authorities interpreting words in
same way.
Balaji Computers, State of Karnataka v/s.
(2007) 8 RC 332(SC)
(17) Schematic interpretation.
Lakshmi Machine Works, CIT v/s.
(2007) 290 ITR 667 = 160 Taxman 404 = 210 CTR 1 =
200 Taxation 254 (SC)
(18) Explanation – Scope and purpose of
Dilip N. Shroff v/s. Joint CIT
(2007) 291 ITR 519 = 210 CTR 228 =161 Taxman 218 = 201
Taxation 53 (SC)
(19) Explanation
Corporation Bank, Government of Andhra Pradesh v/s.
(2007)8 RC 676(SC)
(20) Duty to interpret statute as it is – Not to read words which
Legislature has deliberately not incorporated.
Tara Agencies, CIT v/s.
(2007)292 ITR 444 = 210 CTR 454 = 162 Taxman 337 =
201 Taxation 359 (SC)
(21) Purposive construction – Applicable to statute granting
immunity – Executive instruction – Circulars of CBDT – Can
be taken in aid of construction.
Tanna and Modi v/s. CIT
(2007) 292 ITR 209 =210 CTR 273 = 161 Taxman 329 =
201 Taxation 194 (SC)
(22) Provision providing incentive to exports – Liberal
interpretation – But where provision clear, words cannot be
ignored or misinterpreted to confer benefits not intended.
Moosa (A.M) v/s. CIT
208
209
(2007) 294 ITR 1 = 163 Taxman 741 = 212 CTR 89 (SC)
(23) Exemption notification – To be liberally construed.
Tata Sponge Iron Ltd. . v/s. State of U.P
(2007) 9 RC 539(SC)
(24) Validation clause – While it is permissible for the legislature
to retrospectively legislate, such retrospectivity is normally
not permissible to create an offence retrospectively ‐
Liability to pay interest is really in the nature of a quasi
punishment and although created retrospectively could not
entail the punishment of payment of payment of interest
with retrospective effect.
Star India P. Ltd. v/s. CIT
(2006)201 CTR 63(SC)
(25) Beneficial provision – Liberal interpretation.
Jamnagar Jilla Sahakari Kharidvechan Sangh Ltd. , CIT v/s
(2006) 283 ITR 116 = 153 Taxman 363 = 193 Taxation 592 =
201 CTR 243( (Guj)
(26) Exemption provisions – Once found applicable to case of
assessee to be construed liberally ..
Prabhakar (P.R) v/s. CIT
(2006) 284 ITR 548 = 154 Taxman 503= 204 CTR 27 =
195 Taxation 221 (SC)
(27) Penal Law – Strict interpretation – Scope of – Intention of
legislature
Standard Chartered Bank v/s.
Directorate of Enforcement.
(2005)275 ITR 81=145 Taxman 154=195 CTR 465=188 Taxation
360 (SC)
(28) Ambiguity ‐ Interpretation in favour of assessee.
Parmanand M. Patel , CIT
(2005)278 ITR 3 = 198 CTR 641 =149 Taxman 403=
(2006) 190 Taxation 496 (Guj)
209
210
(29) Explanation – Scope of
Sedco Forex International Drill Inc. v. CIT
(2005)279 ITR 310 = 199 CTR 320= 149 Taxman 352=
(2006) 192 Taxation 27 (SC)
(30) Cardinal Principle – Law to be applied is that in force during
assessment year – On the first day of assessment year.
Sedco Forex International Drill Inc. v. CIT
(2005)279 ITR 310 = 199 CTR 320= 149 Taxman 352 =
(2006) 192 Taxation 27 (SC)
(31) Provision providing for incentive – Where provision is clear –
Benefit cannot be conferred by ignoring or misinterpreting
words.
IPCA Laboratory Ltd. v/s. Dy. CIT
(2004)266 ITR 521 =135 Taxman 594= 187 CTR 513 =181
Taxation 2 (SC)
(32) Contemporary exposition only by officers charged with
enforcement and administration of the statute to be given
weight.
Indian Bank’s Association v/s. Devkala Consultancy Service.
(2004)267 ITR 179 =137 Taxman 69= 189 CTR 157 =181 Taxation
43 (SC)
(33) Purposive construction – Avoidance of conflict – A statute or any
enacting provision therein must be so construed as to make it
effective and operative – Construction which reduces the statute
to a futility or defeats the plain intention of the legislature has to
be avoided – One provision of the Act should be construed with
reference to other provisions in the same Act so as to make a
consistent enactment of the whole statute – Provisions of one
section of the statute cannot be used to defeat those of another
unless it is impossible to reconcile them.
Damani Bros. , CIT v/s. &
Hindustan Bulk Carriers, CIT v/s.
(2003) 179 CTR 362 = 259 ITR 475(SC)
(34) Finance Minister’s speech before Parliament while introducing
bill – Can be relied on to throw light on object and purpose of
provisions.
Kerala State Industrial Development Corpn. Ltd. v/s. CIT
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211
(2003)259 ITR 51 = 180 CTR 192 = 128 Taxman 29 =
174 Taxation 766(SC)
(35) Greater latitude ‐ Does not apply to a provision to validate levy
having no sanction in law.
Shree Digvijay Cement Co. Ltd. V/s. Union of India
(2003) 259 ITR 705 =174 Taxation 744 ( SC)
(36) Interpretation of definition clause – Rule of harmonious
interpretation.
G.K Choksi & Co. v/s. CIT
(2003) 127 Taxman 109 = 174 Taxation 744 (Guj)
(37) Penal law – Strict interpretation – Casus omissus – Plugging
loopholes only for legislature and not for the Court.
Velliappa Textiles Ltd., Asstt. Commissioner v/s.
(2003) 263 ITR 550= 132 Taxman 165 = 184 CTR 193 =
177 Taxation 354(SC)
(38) Primary rule – Intention to be found in words used – Courts
cannot legislate – absuse of law to be corrected by legislature –
Casus omissus – Cannot be supplied except in case of clear
necessity and reason found in the statute.
Padmasundara Rao (Decd) v/s. State of Tamil Nadu
(2002) 255 ITR 147 = 176 CTR 104 = 170 Taxation 303(SC)
(39) Purposive interpretation ‐ Only when language of statute
ambiguous, conflicting or gives meaning leading to absurdity ‐
Power vested in authority ‐ To be exercised in particular manner ‐
Authority has to exercise it only
manner provided.
Anjum M.H Ghaswala, CIT v/s.
(2001) 252 ITR 1 = 171 CTR 1 = 119 TAXMAN 352(SC)
(40) Doctrine of 'reading down' ‐ Doctrine of reading down cannot be
applied to add and read additional words into a statutory order
which would transgress the limits of such order ‐ It can be
resorted to only to give the statute reasonable meaning and to
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make it constitutionally valid.
Omkar S. Kanwar v/s. Union of India
(2001) 170 CTR 354(GUJ)
(41) Definition or interpretation clause ‐ Ordinary meaning ‐
Definition or interpretation clause which defines the meaning of a
word should not be construed as taking away its ordinary
meaning ‐ Such a clause should be so interpreted as not to
destroy the basic concept or essential meaning of the
expression defined, unless there are compelling words to the
contrary ‐ Words which are not specifically defined must be taken
in their legal sense or their dictionary meaning or their popular or
commercial sense as distinct from their dictionary meaning or
their unless a contrary intention appears.
Choksi & Co.(G.K) v/s. CIT
(2001) 171 CTR 396 = 252 ITR 863(GUJ)
53. INVESTMENT DEPOSIT ACCOUNT
(1) Assessment year 1989‐90 – Whether there was no withdrawal
of amount from reserves or provisions ‐ Amount written back
and credited to profit and loss account on account of
reworking of depreciation as per circular of CLB could not be
reduced from profits eligible for relief under section 32AB –
Held, yes.
Alfa Laval (India) Ltd., CIT v/s.
(2008)170 Taxman 615(SC)
(2) Re‐computation of depreciation in accordance with
circular of Company Law Board – Amount credited to
profit and loss account consequent on such re‐
computation – Amount not deductible from eligible
profits – Income Tax Act, 1961.
Alfa Laval (India) Ltd. , CIT v/s.
(2007)295 ITR 451(SC)
(3) Business Profit – Special deduction in computation –
Investment in new machinery or plant – Deduction based on –
“Eligible business” – Purchase and sale of units of UTI
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intertwined and interlaced with manufacture and sale of tyres
– Is an “eligible business”.
Apollo Tyres Ltd v/s. CIT
(2002)255 ITR 273 =174 CTR 521 =122 Taxman 562
=169 Taxation 522(SC)
(4) Claim by way of revised return – Claim for deduction under s.
32AB made in the revised was allowable in lieu of deduction
under s. 32A claimed in the original return even though it was
already processed under s. 143(1)(a).
Deepak Nitrite Ltd. v/s. CIT
(2008) 220 CTR 374 = 206 Taxation 422 = 307 ITR 289
= 175 Taxman 230 = 7 DTR 313 (Guj)
54. INVESTMENT ALLOWANCE
(a) ACTUAL COST
s. 32A – Investment allowance – Actual cost ‐ Government
subsidy not deductible in computing actual cost.
Swastik Sanitary Works Ltd. , CIT v/s.
(2006)286 ITR 544=205 CTR 517=
(2007)197 Taxation 324 (Guj)
(b) ALLOWABILITY
(1) Allowance based on – Not available for civil construction‐
Income Tax Act, 1961, s. 32AB.
S.A Builders Ltd. v/s. CIT(Appeals) .
(2007)289 ITR 26 = 158 Taxman 230 = 208 CTR 207
= 197 Taxation 1 (SC)
(2) Mining and excavation of lignite – Plant and machinery owned
by the assessee and wholly used in mining and excavation
which is the active business of the assessee fulfilled the pre‐
condition of s. 32A and, therefore, assesssee is entitled to
investment allowance.
General Contracts Co. v/s. CIT
(2006) 206 CTR 10 = 287 ITR 416 (Guj)
(c) AVAILABILITY
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214
Plant and machinery ‐ Computers – computers constitute plant
– Entitled to investment allowance – Income Tax Act, 1961, s.
32A.
Statronics & Enterprises (P) Ltd., CIT v/s.
(2007)288 ITR 455 = 207 CTR 96 = 196 Taxation 198 =
165 Taxman 153 = (2008) 3 DTR 343 (Guj)
(d) GENERAL
(1) Mining activity for extracting iron ore – Extraction and processing of
ore amounts to “production” within the meaning of s. 32A(2)(b)(iii)
since ore is “a thing” which is the result of human activity or effort –
Some other provisions of the Act, particularly s. 33(1)(b)(B) r/w
item No. 3 of Fifth Schedule and s. 35E also show that mining of ore
is treated as “production” – Language of these sections is similar to
the language of s. 32A(2) – There is no reason to assume that the
word “production” was used in a different sense in s. 32A –
Consequently, assessee was entitled to investment allowance in
respect of machinery used in mining activity.
Sesa Goa Ltd. , CIT v/s.
(2004) 192 CTR 577 = 271 ITR 331 = (2005) 142 Taxman 16=
185 Taxation 1 (SC)
(2) Assessee was entitled to investment allowance in respect of liability
arising out of fluctuation in exchange rate relatable to repayment of
principal amount borrowed for purchase of capital equipment .
Ahmedabad Kaiser‐Hind Mills Co. Ltd.
(2003)130 Taxman 262 = 177 Taxation 294 = 264 ITR 666(Guj)
(3) Actual Cost ‐ Additional liability due to fluctuation in exchange rate
– Assessee
was not entitled to investment allowance in respect of the amount
paid as a result of fluctuation in exchange rate.
S.G Chemicals & Pharmaceuticals Ltd., CIT v/s.
(2002) 175 CTR 618 = 169 Taxation 679 = 258 ITR 109 (Guj)
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(4) Change in – Rate of exchange of currency – Assets were acquired
and payment was to be made in instalments over a period of time –
Liability for years under consideration increased by reason of
fluctuation in exchange rate – Assessee claimed investment
allowance in respect of additional expenditure on account of cost of
plant and machinery in view of realignment of currency – Once
section 43A(1) comes into play and increase in liability is taken as
actual cost within meaning of section 43(1), effect is that such
adjusted actual cost has to be taken as actual cost for all purposes
other than development rebate and all allowances would have to be
based on such adjusted actual cost – In view of section 43A,
assessee was entitled to investment allowance on figure on
enhanced actual cost.
Gujarat State Fertilisers Co. Ltd. , CIT v/s.
(2002) 125 Taxman 593 = 259 ITR 526 = 15 DTR 108 (Guj) (FB)
(5) Curing of coffee ‐ Process of manufacturing coffee beans from raw
berries ‐ Amounts to manufacturing activity ‐ Coffee beans
produced from berries have distinct identity and are a new
commodity ‐ Assessee entitled to benefit of investment allowance
on machinery installed for curing coffee ‐
Aspinwall and Co. Ltd. v/s. CIT
(2001) 251 ITR 323(SC)
(6) Electrical installations and electrification in workshop ‐ For the
purpose of availing investment allowance under s. 32A, the
equipments or installations even though not directly used in the
manufacturing process should be necessary for it ‐ electrical
installations and electrification in mechanical workshop were
necessary for the manufacturing processes in the plant ‐ Claim for
investment allowance was allowable.
Mihir Textile Ltd. v/s. CIT
(2001) 170 CTR 606 = 252 ITR 686(GUJ)
(e) MANUFACTURE OR PRODUCTION
(1) Conversion of jumbo rolls of photographic films into small flats and
rolls in desired sizes ‐ Amounts to manufacture or production eligible
for deduction under s. 32AB.
India Cine Agencies v/s. CIT
(2008) 220 CTR 223 = 175 Taxman 361 =15 DTR 121 =(2009)308 ITR
98(SC)
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216
(2) Pathological laboratory ‐ Report obtained as a result of a
pathological test is something different from the input and,
therefore, a pathological laboratory can be said to be an industrial
undertaking and investment allowance is allowable on pathological
equipments ‐
Suresh Amin Family Trust, CIT v/s.
(2006) 205 CTR 577=(2007)288 ITR 101 =197 Taxation 462=
158 Taxman 105(Guj)
(3) Construction of road – Road construction activity is not manufacture
or production of an article or thing and, therefore investment
allowance was not allowable on cost of dumpers and water tank
used by the assessee engaged in such activity.
Gujarat Tube Well Co., CIT v/s.
(2006) 206 CTR 14=(2007)288 ITR 301 =
196 Taxation 210 (Guj)
(4) Investment allowance (B) General ‐Manufacture or production
‐ Heart monitoring machine and treadmill – Printing of
functional status on
ECG paper can be said to be production of an article or thing
falling within the ambit of s. 32A – Thus, investment
allowance was allowable in respect of heart monitoring
machine and treadmill.
Nathubhai H. Patel, CIT v/s.
(2006)201 CTR 102= 154 Taxman 117= 193 Taxation 114 =
285 ITR 67 (Guj)
(5) Condition precedent – Creation of reserve – Bakery producing
bread, biscuits etc. – Process amounts to manufacture –
Reserve not created in relevant accounting year due to loss –
Reserve created in the following year ‐ Sufficient compliance
with condition – Assessee entitled to investment allowance –
Income Tax Act, 1961, s. 32A.
Sidral Food P. Ltd. , CIT v/s.
(2006)282 ITR 563= 200 CTR 135 = 192 Taxation 200 =
154 Taxman 412 (Guj)
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(6) Manufacture or production – Preparation of bread, biscuits,
etc. in bakery – End products which are obtained after
processing /consumption of raw materials are articles which
have a distinct identity from the commodities involved in
the preparation – Change which occurs as a result of
processing produces a commercially different commodity
which is recognized as a new and distinct article – Final
product has essentially a different identity vis‐à‐vis inputs –
Therefore, assessee was carrying on a business of
manufacture or production and was entitled to investment
allowance in respect of plant and machinery used for the
production of bakery products like bread, biscuits and cakes.
Sidral Food (P) Ltd., CIT v/s.
(2006) 200 CTR 135 = 282 ITR 563= 192 Taxation 200=
154 xman 412(Guj)
(7) Computers – Entitled to investment allowance – Income Tax Act,
1961, s. 32A.
Sayaji Iron and Engineering P. Ltd., CIT v/s.
(2006) 281 ITR 438 =192 Taxation 588 (Guj)
(f) PLANT
(1) Drainage and sewerage network – Said network was installed in
factory for channelising the waste materials obtained on chemical
reaction while manufacturing fertilizers – Tribunal found that the
drainage and sewerage network running through the factory was a
part and parcel of plant and machinery – Hence, it was eligible for
investment allowance Held, valid..
Tractor trailers used for lifting and carrying equipments and
materials – Tribunal found that the tractor trailers were used to
transport raw materials, finished products and equipments within
the factory premises – In view of said finding of fact, it cannot be
held that the tractor trailers were road transport vehicles – Applying
the functional test, tractor trailers are to be treated as “plant” –
Such tractor trailers having been inducted or introduced in the
business, they were “installed” for the purpose of business –
Hence, assessee was entitled to investment allowance.
Gujarat Narmada Valley Fertilizer Co. Ltd, CIT v/s.
(2005)195 CTR 404 = 189 Taxation 414 (Guj)
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(2) Computers – Computer ORG 200‐B microprocessor has to be
considered as an item of plant and machinery entitled to
investment allowance.
Dinesh Mills Ltd., CIT v/s.
(2005)199 CTR 509=148 Taxman 76= (2004) 186 CTR 634=
268 ITR 502 (Guj)
(3) Plant and machinery – User for manufacturing activity – Fact
that the electric installations, transformer and air conditioning
plant area plant and machinery is not disputed – Concurrent
finding recorded by the CIT(A) and the Tribunal that these
items form part of integrated manufacturing plant and are not
items which can be operated independent of each other for
the purpose of the business of the assessee – No material
brought on record to dislodge the said finding – Therefore,
investment allowance was allowable on electrical installations,
transformer and airconditioning plant.
Starlight Silk Mills (P) Ltd. , CIT v/s.
(2005) 199 CTR 718=(2006) 280 ITR 257= 192 Taxation 342
(Guj)
(4) Compound walls and fencing ‐ Assessee not entitled to investment
allowance on compund wall and fencing.
Gujarat State Fertilizer Co., CIT v/s.
(2002) 255 ITR 294 = 174 CTR 318 = 123 Taxman 651 (Guj)
(5) Investment allowance not allowable for office appliances – Meaning
of “office appliance” – Co‐operative Milk Producers’ Union – Wireless
equipment installed at factory, chilling centers and vehicles – Not an
office appliance – Entitled to investment allowance.
Mehsana District Co‐op. Milk Producers Union Ltd. v/s. CIT
(2002) 256 ITR 322 = 166 Taxation 339 = 121 Taxman 689=
175 CTR 612 (Guj)
(6) Hotel building ‐ Not a plant‐ Not entitled to investment allowance ‐
Abad Hotels India (P) Ltd., CIT v/s.
(2001) 170 CTR 185= 251 ITR 204 (SC)
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(7) Condition precedent – Manufacture or production of article –
Data processing through computer – Amounts to production of
article ‐ Assessee providing computer services – Investment
allowance available on cost of computer – Income Tax Act,
1961, s. 32A.
Professional Information Systems and Management, CIT v/s.
(2005) 274 ITR 242 = 146 Taxman 673 =
187 Taxation 586(Guj)
(8) Sale/use of plant and machinery as scrap – Plant and machinery
was scrapped and scrap was utilized as raw material for
manufacture of steel and the steel was subsequently sold – Neither
machinery nor plant on which investment allowance had been
granted was sold or otherwise transferred ‐ What was sold was
steel recovered from the scrap of plant and machinery ‐ Hence,
there is not question of application of s. 155(4A)(a) so as to
withdraw the investment allowance.
Star Steel (P) Ltd., CIT v/s.
(2003) 184 CTR 521 = 264 ITR 236 = 177 Taxation 711 (Guj)
(9) During previous year relevant to assessment year under
consideration assessee firm was dissolved and its assets and reserve
credited under section 32A(4) were distributed amongst partners in
specie – During assessment proceedings, ITO withdrew investment
allowance granted to assessee on ground that on dissolution of
firm, machineries and reserve were transferred to partners before
8 years within meaning of section 32A(5) – Where an assessee
disables himself from continued exclusive user of plant or
machinery for purpose of his business for period specified in section
32A(5), consequences specified in said section will follow, provided
machinery or plant is ‘otherwise transferred’ ‐ Where machinery or
plant is not wholly used by assessee for purpose of business
carried on by him for specified period and such user is given over to
another, it can be stated that machinery or plant is otherwise
transferred by assessee to another person – Therefore ITO was
justified in withdrawing investment allowance granted to assessee.
Nipa Twisting Works, CIT v/s.
(2003) 130 Taxman 649 = 183 CTR 465 =263 ITR 697 =
177 Taxation 573 (Guj)
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(g) WITHDRAWAL
(1) Withdrawal of allowance – Effect of sub section (5) of section 32A –
Investment allowance granted to firm – Amount in investment
allowance reserve utilized to purchase machinery – Amount in
reserve credited to capital accounts of partners – Not relevant ‐
Investment allowance could not be withdrawn ‐ Income tax Act,
1961, s. 32A.
Shree Shantinath Silk Mills , CIT v/s
(2008) 303 ITR 58 = 205 Taxation 228(Guj)
(2) Foreign currency, rate of exchange, change in ‐ Assessment
year 1993‐94 – Whether whenever there is fluctuation in
foreign exchange rate in any previous year section 43A(1)
comes into play – Held, yes – Assessee company claimed
increased amount as investment allowance on account of
increase in cost of plant and machinery due to exchange rate
fluctuation – Assessing Officer disallowed claim, but on appeal,
Tribunal allowed assessee’s claim and said order was upheld by
High Court in appeal – Since no factual details were furnished
by assessee regarding alleged fluctuation in foreign exchange
rate matter was to be remitted back to Tribunal to grant an
opportunity to assessee to establish factual position relating to
fluctuation in foreign exchange rate and thereafter to consider
whether assessee was justified in claiming deduction in
background of section 43A(1)as it stood then.
Gujarat Siddhi Cement Ltd., CIT v/s.
(2008)174 Taxman 598 = 220 CTR 217 = 307 ITR 393= 15 DTR 89=
(2009)208 Taxation 363 (SC)
(3) No transfer of assets is involved when distribution of
partnership assets takes place upon dissolution of firm – It is
not the case of the Revenue that the machinery which was
allotted to the partner was subsequently transferred within
the statutory period – For invoking cl. (b) or (c) of sub‐s (5)
of s. 32A, the existence of the assessee who was granted
investment allowance is a pre‐requisite condition ‐ This
position is abundantly clear from s. 155(4A) wherein period
of limitation is prescribed for all the three situations
envisaged by cls. (a), (b) and (c), respectively ‐ Thus, where
the assessee itself does not exist, it is not possible to state
that the assessee has not utilized the reserve within the
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statutory period ‐ Moreover, in the instant case, the reserve
pertaining to asst. yr. 1977‐78 was utilized when the assessee
firm was in existence and the reserve relating to asst. yr.
1978‐79 was utilized by the partner who took over the
business – Thus, investment allowance could not be withdrawn.
Pratik Prints , CIT v/s.
(2005)193 CTR 361=144 Taxman 126=185 Taxation 327=
274 ITR 289 (Guj)
(4) Provisions of section 32A cast a duty on assessee to inform
Assessing Officer about transfer of machinery or plant, on which
investment allowance has been claimed or its carry forward has
been claimed in return, if such transfer takes place at any time
before expiry of eight years from end of previous year in which
asset was acquired or installed.
Mamta Type Setting Works v/s. Asstt. CIT
(2004) 134 Taxman 34=187 CTR 151‐180 Taxation 421=267 ITR
623(Guj)
(5) Utilization of investment allowance reserve – Assessee having
utlised more amount than credited to investment reserve account
for purchase of new machinery and plant before expiry of ten years
mentioned in cl. © of s. 32A(5), there was no violation of said
provisions by crediting the partners, capital account by the amount
standing to the credit of the investment allowance reserve account
so as to attract withdrawal of investment allowance under s. 32A(5)
r/w s. 155(4A).
Shree Shantinath Silk Mills, CIT v/s.
(2008)215 CTR 434 = 205 Taxation 228 (Guj)
55. JUDICIAL PRECEDENTS
Binding nature ‐ Decision of High Court appealed before the
Supreme Court – Apex Court restored the matter to CIT(A) to
decide the issue afresh and also to decide any consequential issue
that may arise – Finding of the High Court on that question did not
survive ‐ Further, the judgment of the High Court when carried in
appeal before the apex Court on very same issue would not have
any independent existence thereafter in the light of principle of
merger.
Baroda Peoples Co‐operative Bank Ltd., CIT v/s.
(2005)198 CTR 1 =149 Taxman 509 =
(2006) 190 Taxation 108 =280 ITR 282 (Guj)
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56. KAR VIVAD SAMADHAN SCHEME
(1) Immunity from prosecution ‐ Offence under IPC – Immunity
under the Kar Vivad Samadhan Scheme, 1998, is restricted to
prosecution for offences covered under the direct tax
enactments and indirect tax enactments and is available only
to the tax payer who has made the declaration under s. 88 of
Finance (No.2) Act, 1998 – Appellant was not entitled to
immunity under s. 91 against prosecution in respect of offences
allegedly committed under s. 120B r/w ss. 468, 471 of IPC and s
13(2) s. 13(1)(d) of Prevention of Corruption Act, on the basis
of the declaration made under KVSS by a co‐accused.
Natarajan M. v/s. State by Inspector of Police, Chennai
(2008) 217 CTR 1 = 7 DTR 294(SC)
(2) Whether Tax arrears ‐ Order under s. 245D(4) in the case of firm –
Order under s. 245D(4) in the case of firm cannot be equated with
the order in the case of partner and AO having raised the demand
against the petitioner (partner) only on 1st July, 1998 by framing an
order under s. 155 pursuant to the order passed under s. 245D(4) in
the case of the firm, there was no outstanding tax arrears before
that date and therefore declaration made by the petitioner under
KVSS could not be accepted.
Kailash T. Agrawal v/s. M.S Thanvi, Designated Authority
(2008) 218 CTR 291 = 10 DTR 10(Guj)
(3) Payment of tax arrears ‐ Computation of time limit – For the purpose
of payment of tax under s. 90(2) of Finance (No.2) Act, 1998 the
period of 30 days is required to be computed from the date of
receipt of the order of the Designated Authority and not from the
date of the order itself.
Shreeji Shroff v/s. CIT
(2008) 218 CTR 296 = 207 Taxation 622 = 10 DTR 14(Guj)
(4) Pendency of appeal, revision etc ‐ Belated filing of revision
application – Declaration under KVSS made during the pendency of
belated application under s. 264 filed by the assessee along with an
application for condonation of delay has to be accepted ‐
Sheela Ashokkumar Goenka v/s. Designated Authority
(2008) 218 CTR 287 = 207 Taxation 625 = 10 DTR 1(Guj)
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(5) Pendency of appeal, revision etc ‐Fling of revision application – It is
not open to the Designated Authority under the KVSS to take
recourse to either the provisions of s. 264(4)(c) or s. 249(4)(a) for
holding that the revision application and the appeal, respectively,
were not maintainable and, therefore, the Designated Authority
could not reject the declaration filed by the petitioner on the
grounds that the revision petition is infructuous as the order under
s. 143(3) has been made subject of an appeal to the CIT(A) and that
the appeal filed before the CIT(A) cannot be admitted in view of non
compliance with the provisions of s. 249(4)(a) ‐
Deval Sales Tax Corporation v/s. CIT
(2008) 218 CTR 282 = 207 Taxation 456 = 10 DTR 5(Guj)
(6) Pendency of appeal, revision, etc ‐ Belated filling of appeal before
Commissioner of Central Excise (Appeals) – Tribunal having held that
appeal filed by assessee before CCE(A) was within time, the same
was to be treated as pending for purposes of KVSS and assessee’s
declaration could not be rejected on the ground that no appeal was
pending.
Swan Mills Ltd. v/s. Union of India & Ors.
(2007) 211 CTR 78 = 165 Taxman 621 = (2008) 296 ITR 1 (SC)
(7) Sales Tax ‐ Finality of Order – Applicability to sales tax laws of
States – Provisions of Kar Vivad Samadhan Scheme, 1998, such
as finality of orders under s. 90(3) and immunity under s. 91
thereof cannot be availed in proceedings under the sales tax of
States.
Master Cables (P) Ltd. v/s. State of Kerala & Anr
(2007)210 CTR 86 = 162 Taxman 479 = 200 Taxation 246=
(2008) 296 ITR 8 (SC)
(8) Finality of order ‐ Applicability to sales tax laws of States –
Provisions of Kar Vivad Samadhan Scheme, 1998 such as finality
of orders under s. 90(3) and immunity under s. 91 thereof
cannot be availed in proceedings under the sales tax laws of
States.
Master Cables (P) Ltd. v/s. State of Kerala & Anr
(2007) 210 CTR 86 = 162 Taxman 479 = 200 Taxation 246=
(2008) 296 ITR 8 (SC)
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(9) Immunity from prosecution and imposition of penalty in certain
cases ‐ Public servants who can never file a declaration under
scheme would not come within purview of Act – An immunity
under section 91 is granted only in respect of offences
purported to have been committed under direct tax
enactment or indirect tax enactment, but by no stretch of
imagination, same would be granted in respect of offences
under Prevention of Corruption Act, 1988 – Held, yes.
Sashi Balasubramanian, State, CBI v/s.
(2006) 157 Taxman 261 = 206 CTR 587=
(2007) 8 RC 57= 289 ITR 8 (SC)
(10) Payment of tax arrear – Delay in payment ‐ Order issued by
the Designated Authority on 19 th Feb., 1999, was received by
the petitioner on 24 th Feb., 1999 – Assuming that the 30 day
period prescribed in s. 90(2) of the Finance (No. 2) Act, 1998,
was to start from the date of receipt of said order, tax was
payable on or before 26 th March, 1999 – Petitioner having not
paid the amount by the said date, Jt. Commr. Was justified in
refusing to issue the certificate of declaration, there being no
provision for condoning the delay in making payment of tax
arrears.
Refund ‐ Bar of s. 93 of Finance (No. 2) Act, 1998 –
Respondent not issuing necessary certificate in favour of
petitioner on the ground of delayed payment – As per s. 93,
any amount paid pursuant to the declaration made under s. 88
by the declarant is not refundable under any circumstances ‐
Hence, amount deposited by the petitioner in pursuance of
declaration could not be refunded.
B & Brothers Engineering Works & Anr. V/s. Union of India.
(2005)197 CTR 306=(2006) 190 Taxation 779 =
282 ITR 474 =153 Taxman 405 (Guj)
(11) Declarations for composition – Arrears of tax – Liability to pay
interest on arrears of tax arises only after determination by
designated authority ‐ Rejection of declaration – Writ –
Declaration held valid – Direction for payment of interest – Set
aside – Finance (No.2) Act, 1998, ss. 87(f), 90, 92.
Shatrusailya Digvijaysingh Jadeja v/s. CIT
(2005) 277 ITR 449 = 197 CTR 596 = 147 Taxman 563=
(2006) 190 Taxation 9 (SC)
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(12) Pendency of appeal, revision etc. – Belated filing of revision
applications – Although there is a difference between
appeals revisions and reference under the IT Act, those
differences are obliterated and appeals, revisions and
references are put on par under s. 95(1)(c) of Finance (No.2)
Act, 1998 – It could not be said that the revisions were not
“pending” in terms of s. 95(i)(c) because they were time
barred – Therefore, orders of the designated authority
rejecting the declarations are quashed.
Shatrusailya Digvijaysingh Jadeja, CIT v/s.
(2005)197 CTR 590 = 147 Taxman 566= 277 ITR 435=
190 Taxation 3 = (2006) 190 Taxation 3(SC)
(13) Scope of – “Tax arrears” – Modified demand after March, 31, 1998 –
Whether as a result of concession by assessee or otherwise not
relevant – No requirement for modification to be completed before
March, 31, 1998 – Finance (N0.2) Act, 1998, ss. 87(f), (m) (i), 88, 89,
95(i)(c) .
Renuka Datta (Dr.) (Mrs.) v/s. CIT
(2003)259 ITR 258 =179 CTR 218 =126 Taxman 427 =
173 Taxation 51(SC)
(14) Condition – Pendency of appeal, etc. – Designated authority – No
power to question possible outcome of appeal – High Court – No
power to hold appeal etc.to be sham, ineffective or infructuous –
Finance (No.2) Act,1998, s. 95(i)(c ).
Renuka Datta (Dr.) (Mrs.) v/s. CIT
(2003)259 ITR 258= 179 CTR 218 = 126 Taxman 427 =
173 Taxation 51 (SC)
(15) Declaration filed within time – Revision application preferred to
commissioner after long delay with application for condonation of
delay – Delay not condoned ‐ Revision application not pending on
date of declaration – Declaration not maintainable ‐ Finance (No. 2)
Act, 1998, ss. 87(m), 88, 95(i)( c) ‐ Income Tax Act, 1961, s. 264.
Computwel Systems P. Ltd. V/s. W. Hasan (2003) 260 ITR 86 =
184 CTR 92 = 174 Taxation 566 (SC)
[but see it case No. 16 above which takes contrary views.]
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226
(16) Initiation and continuation of prosecution proceedings after
settlement under Scheme – Two machines were imported by GCS
on the basis of the exemption certificate issued in the name of
GCRI, an institution funded by GCS – Customs authority denied the
concessional duty benefit and demanded duty under s. 28 of the
Customs Act, 1962 – Availing the benefit of Kar Vivad Samadhan
Scheme , GCS deposited the stipulated amount and withdrew the
civil appeal which was pending at that time against the order of
CEGAT – Designated Authority under the Scheme issued the
certificate to declarant certifying the receipt of payment towards
full and final settlement of tax arrears and granting immunity from
prosecution for any offence under the Customs Act in respect of
matters covered in the aforesaid declaration – Thus GCS acquired
immunity from any criminal proceedings pursuant to the
certificate and the complaint filed against the office bearers of GCS
for the alleged offences under s. 120B r/w s. 420 of IPC is not
sustainable ‐ Further, no prosecution was pending nor the
appellants stood convicted for an offence falling in Chapter IX or
XVII of the IPC on the date they submitted their declaration –
Otherwise, they would not have been eligible to seek benefit
under the Scheme ‐ Once the settlement is brought about criminal
proceedings cannot be initiated and continued for such an offence in
relation to the matter covered under the declaration.
Hira Lal Hari Lal Bhagwati v/s.Central Bureau of Investigation
(2003) 182 CTR 1 = 129 Taxman 989 = 262 ITR 466=
176 Taxation 231 (SC)
(17) Revision application under section 264 had been filed by petitioner
assessee but Commissioner did not condone delay in filing such
application – Declaration under section 88 was also filed but same
was not entertained as according to Commissioner there was no
revision application pending because delay had not been condoned
– On writ, High Court upheld Commissioner’s order – Revision
petition was not pending when application under section 88 had
been filed – Revision petition itself was never entertained as delay
was not condoned – High Court was justified .
Computwel System (P) Ltd. V/s. W. Hasan
(2003)129 Taxman 67 = 184 CTR 92 =174 Taxation 566 =
260 ITR 86 (SC)
[but see contrary view taken in case No. 16 above)
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227
(18) Assessment years 1982‐93 to 1988‐89 and 1991‐92 ‐ Petitioner was
a partner in few firms – When Settlement Commission passed order
under section 245D(4) in case of those firms, share income of
petitioner increased – When Assessing Officer gave consequential
effect by order under section 155, petitioner preferred appeals
under section 246A and also filed declaration under section 89 to
avail benefit of KVS Scheme – Designated authority rejected
declaration in view of provisions of section 95(i)(b) and also held
appeal under section 246A as not valid – Petitioner contended that
firm and partners were two different entities and order passed by
Settlement Commission in case of a firm could not automatically lead
to conclusion that said order was passed in case of partner also – In
instant case section 155(1) was required to be read with section
95(i)(b) and if firm was prohibited from approaching designated
authority for settlement of its tax disputes as those disputes were
already resolved by Settlement Commission, partner was equally
prohibited from approaching designated authority qua share
income from firm – Appeal/revision filed by petitioner against order
under section 155 was rightly considered as not valid appeal or
revision in eyes of law, as there was no grievance as such against that
order and frivolous appeal/revision had been filed only for purpose
of availing benefit under KVS Scheme – Designated authority was,
therefore, certainly justified in rejecting impugned declaration.
Manibhai Prabhudas Patel v/s. Koolwal (L.K) Designated Authority
(2003)133 Taxman 247 = (2002) 177 CTR 386 =
170 Taxation 662 =258 ITR 308 (Guj)
(19) Order of adjudication – If amount determined and assessee called
upon to pay ‐ Demand made earlier confirmed – Amount to
adjudication – Kar Vivad Samadhan Scheme, 1998 – No appeal,
reference, writ petition or application pending ‐ Declaration under
scheme – Rejection ‐ Proper – Finance (No. 2) Act, 1988, s. 95 –
Central Excise Act, 1944, ss. 11A(2), 35 ‐ Central Excise Rules, 1944,
R.213.
Laiya Dyeing and Bleaching Works v/s. Union of India.
(2003) 263 ITR 763 = 185 CTR 329(SC)
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228
(20) Order made by designated ‐ Authority ‐ Effect ‐ Full and final
settlement of tax arrears – Declaration by designated authority
determining arrears and payment by applicant of arrears ‐
Immunity springs into effect – Assessing Officer – No jurisdiction to
issue notice for assessment thereafter – Only exception – Where
material particulars furnished in declaration found to be false.
Killick Nixon Ltd. v/s. Deputy CIT
(2002) 258 ITR 627 = 178 CTR 387 = 125 Taxman 1055 =
(2003) 172 Taxation 373 (SC)
Effect of removal of difficulties order – Order effective from 1‐9‐98 –
Settlement of dues by company under Kar Vivad Samadhan Scheme
– Imposition of penalties on directors on November 30, 1998 – Not
valid – Kar Vivad Samadhan Scheme (Removal of Difficulties) order,
1998.
Radheshyam Tilochand Agarwal Saraogi v/s. Union of India
(2002) 257 ITR 249 = 175 CTR 322 = 124 Taxman 872(Guj)
(21) Condition precedent for filing declaration ‐ Tax arrears – Relevant
date – Date of declaration – Subsequent wiping out by rectification
order – No effect – Benefit under scheme cannot be denied.
Shaily Engineering Plastic Ltd., CIT v/s.
(2002) 258 ITR 437 = (2003) 179 CTR 14 =126 Taxman 177 (SC)
(22) Maintainablity of declaration – Order under s. 245D(4) in the case of
firm – Since the firm is prohibited from approaching the designated
authority for settlement of its tax disputes in view of bar of s.
95(i)(b) of the Finance (No. 2) Act, 1998 the partners are equally
prohibited from approaching the designated authority qua thee
share income from the said firm – Further, the appeal/revision filed
by the petitioners against the order under s. 155 cannot be
considered to be a valid appeal or revision in the eye of law as there
was no grievance as such against that order – Designated authority
justified in rejecting the impugned declaration.
Manibhai Prabhudas Patel & Anr. V/s. L.K Koolwal
Designated Authority
(2002) 177 CTR 386 = 170 Taxation 662 = 258 ITR 308=
(2003)133 Taxman 247 (Guj)
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229
(23) Pendency of appeal, revision etc. – Belated filing of revision
applications – Sec.95(i)(c) of the Finance (No.2) Act, 1998, uses only
the word “pendency” as far as revisions are concerned and not the
expression “admitted and pending” which is used for appeals –
Therefore, the submission that unless the delay in filing the revision
application is condoned, it cannot be said that the revision
application was pending has no force – Further, submission that
since the appeals filed by the petitioner for the relevant assessment
years were earlier dismissed for non deposit of tax, the revisions
were not maintainable by virtue of the provisions of s. 264(4) also
cannot be sustained ‐ Contention of the Revenue that pendency of
the revision, etc. on the date of the commencement of the scheme is
also a condition precedent for obtaining the benefit of the scheme
cannot be accepted since this involves addition of the words “as on
the date of commencement of the scheme as also” at two places in
s. 95(i)( c) – Apart from that Revenue had accepted the
declarations of the assessee where belated appeals were filed after
the date of commencement of the scheme – No reason to infer a
casus omissus and supply the same – Designated Authority directed
to accept the petitioner’s declarations under the scheme which were
filed when the revision applications were pending.
Shatrushailya Digvijaysingh Jadeja v/s. CIT
(2002) 177 CTR 508 =(2003) 172 Taxation 16 =259 ITR 149=
132 Taxman 644(Guj)
(24) Section 91 of the Finance (No.2) Act, 1998, read with KVSS (Removal
of Difficulties) Order – Kar Vivad Samadhan Scheme – One show
cause notice was issued by excise authorities on company and
directors/officers alleging evasion of excise duty ‐ Subsequently,
show cause notice was adjudicated requiring company to pay tax
arrears and penalty – Further, each director/officer was required to
pay personal penalty ‐ When appeal was pending before Tribunal,
KVSS 1998 was announced – Company and directors/officers filed
separate declarations ‐ Commissioner determined settlement
assessment – Company paid amount so determined – Directors/
officers also paid amounts determined for them, which they claimed
to have been paid under protest – Subsequently, in writ,
directors/officers claimed that as company had settled issue under
KVSS, directors/officers would be entitled to refund of amount
personally paid – Whether matter covered in declaration by
company was ‘tax arrears’ of company which did not cover arrears
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230
of directors/officers and, therefore, directors/officers would get no
immunity under section 91 on a settlement by company – Held, yes
– Whether a settlement by main declarant was to operate as full and
final settlement in respect of all other persons on whom show cause
notice was issued in respect of same matter – Held, yes – Whether
object of Kar Vivad Samadhan Scheme (Removal of Difficulties) Order
is to give benefit of a settlement by main party (i.e company in
instant case) to all other co‐notices and that being object a
classification restricting benefit only to cases where show cause
notice is pending adjusdication, would be unreasonable – Held, yes ‐
Whether, therefore, words “pending adjudication” cannot be read to
exclude cases where proceedings are still pending in appeal – Held,
yes – Whether since all assessees paid amounts in pursuance of
declaration made by them under section 88, even if they had paid
amounts under protest, they were not entitled to refund by virtue of
section 93 which prohibited refund under any circumstances – Held,
yes.
Onar S. Kanwar, U O I v/s.
(2002) 125 Taxman 121 = 258 ITR 761= (2003)174 Taxation 213(SC)
(25) Firm ‐ Partner ‐ Concession to firm and partners ‐ Concession
applies only where firm and partners have tax arrears ‐ Partner
paying taxes ‐ Subsequent declaration and payment of taxes under
Kar Vivad Samadhan Scheme by firm ‐ Partner not entitled to refund
of tax.
Shankerlal Nebhumal Uttamchandani v/s. CIT
(2001) 251 ITR 876 = 165 TAXATION 67 = 171 CTR 203(GUJ)
(26) Maintainability of declaration ‐ Scope of Kar Vivad Samadhan
Scheme (Removal of Difficulties) Order, 1998 ‐ Para 2 of the Order is
intended to give a restrictive meaning to the expression "civil
proceedings" as to include only proceedings at the demand notice
or show cause notice stage ‐ It cannot be understood to mean
proceedings against the co‐ notice pending even at the
appellate stage ‐ Central Government could never have intended
that all the co‐noticees who had submitted declaration and paid 50
per cent of the tax arrears would be totally exempted from tax, on
settlement of case/cases against the main noticee ‐ Order of the
Central Government has to be interpreted reasonably on its plain
language and in consonance with the Scheme under which it has
been issued ‐ Doctrine of reading down cannot be applied to add
and read additional words into a statutory order ‐ Co‐noticees
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231
against whom the penalties have been quantified at the appellate
stage and who have made declaration and payment constitute
a class separate from those co‐noticees who are facing
proceedings at the show‐cause notice stage ‐ The two classes
can reasonably be treated differently ‐ Such classification is not
unreasonable or discriminatory.
Omkar S. Kanwar v/s. Union of India
(2001) 170 CTR 354= 259 ITR 761 = 125 Taxman 121(SC)
57 . KNOW – HOW
Section 35AB of the Income Tax Act, 1961 ‐ Technical know how
expenditure ‐ Assessment year 1981‐82 ‐ Assessee had paid an
amount of Rs. 7,16,654 being payment of third and last instalment in
pursuance of an agreement with a foreign company for providing
technical know how, drawings, designs documents etc. which was
entered into n 13‐12‐1978 and was approved by Government of
india on 29‐3‐1979 ‐ Assessee had also paid a sum of Rs. 1,12,30,810
as fees for design, calculations, manufacturing drawings,
specifications, etc. to a foreign collaborator as per agreement dated
6‐8‐1980 ‐ This payament was claimed for reason that assessee
had acquired know how etc. on behalf of another company which
paid for it to assessee company which in turn paid fees to foreign
collaborator ‐ Know how was never utilised by assessee ‐ Both
payments were claimed by the assessee to be revenue
expenditure ‐ In view of decision of Gujarat High Court in CIT v/s.
Suhrid Geigy Ltd. (1996) 220 ITR 153, expenditure in question was
rightly held allowable by Tribunal as revenue expenditure ‐ Held,
yes ‐
Elecon Engg. Co. Ltd, CIT v/s.
(2001)117 TAXMAN 442(GUJ)
58. LIMITATION FOR ASSESSMENT
(1) Draft assessment order ‐ Extended period of limitation where
draft assessment order is forwarded to inspecting Assistant
Commissioner – Inspecting Assistant Commissioner exercising
jurisdiction to assess by virtue of order conferring powers of
Assessing Officer on him – Extended period of limitation not
available‐Income Tax Act,1961, ss.125A,144B, 153.
Saurashtra Cement and Chemical Industries Ltd., CIT v/s.
(2005)274 ITR 327 = 195 CTR 33= 187 Taxation 599(Guj)
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232
(2) A mandate on judicial forum is that limitation aspect even if not
raised, it has to consider and apply.
British India Corporation Ltd., Union of India v/s.
(2004)268 ITR 481= 190 CTR 385= 183 Taxation 1= 140 Taxman
357 (SC)
(3) Time limit for completion of ‐ For assessment year 1984‐85, return
was due to be filed on 30‐6‐1984 by assessee – In meanwhile search
was conducted and Assessing Officer by order dated 1‐9‐1984,
directed assessee to get accounts audited under section 142(2A) –
Assessee received report on 18‐8‐1987 – Assessing Officer completed
assessment on 23‐9‐1987 – On appeal, Tribunal held that
assessment should have been completed on or before 31‐3‐1987
(date ending two years from end of relevant assessment year ), and
since it was completed only on 23‐9‐1987, it was barred by
limitation, and reference under section 142(2A) was unauthorized as
there was no pending proceeding in which such order could be
made by Assessing Officer and, consequently, department could not
get benefit of extended time under proviso to section 153(1) – Since
assessee paid advance tax for relevant assessment year on basis of
original estimate and had subsequently filed a revised estimate in
December 1983 and had paid the balance amount of tax on 5‐12‐
1983, it could not be said that no proceeding was pending before
Assessing Officer as on date of order under section 142(2A) – In view
of Explanation 1(iii) to section 153(3), period commencing from date
on which Assessing Officer directed assessee to get its accounts
audited under section 142(2A) and ending with date on which
assessee furnished report, is liable to be excluded – Therefore, if in
instant case abovesaid period was excluded , assessment completed
on 23‐9‐1987 was within time provided in Explanation 1(iii) of
section 153(3).
N.C John & Sons Ltd. v/s. CIT
(2003) 128 Taxman 857 =183 CTR 32= 176 Taxation 471 =
264 ITR 645 (SC)
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233
(4) Applicability of s. 153(1)(c ) – Assessee filed return for asst. yr. 1973‐
74 on 14th Aug, 1973 on the basis of general extension granted by
Circular No. 113, dt. 20th June, 1973 – Same has to be treated as a
return under s. 139(1) – Accordingly, revised return filed thereafter
by the assessee is necessarily to be considered as a return under s.
139(5) ‐ Provisions of s. 153(1)(c ) clearly attracted – Since the
assessment was made within one year from the end of the month
in which the revised return was filed, it was neither invalid nor non
est nor barred by limitation.
Hargovind Damji v/s. CIT
(2002) 177 CTR 20 = 123 Taxman 949 =(2003)259 ITR 617 (Guj)
59. LOSS – CARRY FORWARD
(1) Belated filing of return ‐ In the absence of communication of
the factum of rejection of assessee’s application for extension
of time for filing the return, the order passed by the AO
refusing to extend time was ineffective and therefore, claim of
carry forward of assessed loss could not be denied on the
ground that the return was filed late ‐
Dhatu Sanskar (P) Ltd., CIT v/s.
(2007)209 CTR 39=292 ITR 135=209 CTR 39 =
199 Taxation 499 =163 Taxman 684(Guj)
(2) Loss ‐ Carry forward and set off on succession by inheritance –
Assessment ‐Year 1965 – 66 to 1971‐72 – Legal heirs of deceased
proprietor entered into partnership and carried on same business
in same premises under same trade name ‐ There was succession by
inheritance as contemplated in section 78(2) and assessee firm was
entitled to carry forward and set off deceased’s business loss
against its income for subsequent years.
Madhukant M. Mehta, CIT v/s.
(2002) 124 Taxman 130(SC)
(3) Application for extension of time to file return – No reply from
Revenue – Presumption that time had been extended ‐
Assessee entitled to carry forward and set off loss ‐
Swastik Sanitary Works Ltd. , CIT v/s.
(2006)286 ITR 544 =205 CTR 517(2007)197 Taxation 324 (Guj)
(4) Admittedly notice under s. 143(2) was issued beyond the statutory
period of limitation prescribed under proviso to s. 142(2) i.e one
year from the end of the month of filing of return ‐ CIT(A) and the
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234
Tribunal were correct in holding that the assessment was void ab
initio.
Mahi Valley Hotels & Resorts, Dy. CIT v/s.
(2006) 201 CTR 308 = 193 Taxation 418 = 287 ITR 360 (Guj)
(5) Return filed within time for which extension was sought ‐ A
return of loss has to be furnished within the time allowed
under sub. S. (1) of s. 139 or within such further time which,
the AO may, in his discretion, allow ‐ Due date for filing the
return is either the one stated under cl. (a) or cl. (b) of sub.s
(1) of s. 139 or the extended date application was made in
time before the AO under the proviso to sub.s (1) of s. 139 –
Same not dealt with by the AO – Assessee justified in
presuming that the application has been granted in the
absence of any order granting or rejecting the same – Return
of loss was filed within the period for which extension was
sought ‐ Benefit of carry forward of business loss could not be
denied – Tribunal deprecated for disposing of the appeal
cursorily and in a casual manner and contrary to the settled
legal position.
Mehsana Ice & Cold Storage (P) Ltd. v/s. CIT
(2005)195 CTR 571= 275 ITR 601=146 Taxman 454 =189
Taxation 744(Guj)
(6) Carrying on of same business – Assessee sold its entire textile
unit and subsequently started activity of purchasing gray cloth,
getting it processed and then selling the same in the market ‐
Finding recorded by the Tribunal that there was common
management and common control in respect of the said
business activities and that there was no difference in the
business carried on by the assessee in two different
accounting periods considering the unity of control ‐ Thus,
Tribunal was justified in holding that the new business run by
the assessee was the same business and the assessee was
entitled to carry forward and set off the accumulated losses.
Amarsinghji Mills Ltd., CIT v/s.
(2006) 201 CTR 265 = 192 Taxation 313 = 286 ITR 129=
156 Taxman 429 (Guj)
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235
(7) Condition ‐ Loss to be determined pursuant to return filed under
section 139(3) – Best judgment assessment ‐ Assessee filing return
with application of cancellation – Cancellation of best judgment
assessment on ground that assessee was prevented by sufficient
cause from making a return ‐ Assessing Officer has to accept
return ‐ Return to be treated as one filed under section 139 for
purposes of carry forward and set off of loss.
H M T Bearings Ltd., CIT v/s.
(2003) 263 ITR 7 = 132 Taxman 600 = 185 CTR 35 =
(2004) 179 Taxation 1 (SC)
(a) GENERAL
Allowable as – Exercising power under section 263, Commissioner
directed Assessing Officer to disallow assessee’s claim of business
loss on ground that no business activity was carried on by assessee in
year under consideration as there was no computation of income or
loss under head ‘Profits and gains of business or profession’ and
profit and loss account did not show any business activity – It is not
necessary that for every year, an assessee must have earned income
from business or profession so as to say that he is carrying on
business activities – Tribunal observed that assessee had past and
subsequent records to show that he was carrying on consultancy
and commission business and also derived agricultural income –
Tribunal was, therefore, right, in law and on facts, in setting aside
order passed by Commissioner under section 263.
Prayashvin B. Patel, CIT v/s.
(2003) 132 Taxman 677(Guj)
(b) SPECULATIVE LOSS
(1) High Court – Application for reference – Speculative loss –
Whether covered by exception in clause (c) of proviso to
section 43(5) – Onus on Revenue – No material to show
assessee not covered by exception – Supreme Court – Appeal
by special leave – Dismissed for other reasons – Income Tax
Act, 1961, ss. 43(5), prov. Cl. (c), 256(2).
Sharwan Kumar Agarwal, CIT v/s.
(2007) 292 ITR 3 = 210 CTR 616 = 163 Taxman 187 (SC)
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236
(2) Deeming provision in UTI Act that UTI deemed to be “company”
and income distributed to unitholder “dividend” for purposes of
Income Tax – Does not amount to units being, “shares” – Purchase
and sale of units – Not speculation – Loss on purchase and sale of
units is business loss.
Apollo Tyres Ltd. v/s. CIT
(2002) 255 ITR 273 = 174 CTR 521 = 122 Taxman 562 =
169 Taxation 522(SC)
(c) TRADING LOSS
(1) Business loss – Fraud by foreign supplier – Assessee entered
into a contract for importing dates from a Dubai party – Said
party presented false shipping documents and collected money
without loading and dispatching the agreed quantity of dates
– Tribunal has found evidence that the assessee had made
attempt to recover the money but failed – Two post dated
cheques received through an intermediary were also not
honoured – In the face of correspondence and telegrams on
record the assessee has prima facie established that it has
incurred loss – In view of the findings recorded by the
Tribunal, it was right in holding that the assessee is entitled to
deduction of impugned amount as business loss – Entire issue
is based on facts and appreciation of evidence and no
question of law is involved.
Mahendra N. Shah, CIT v/s.
(2006)200 CTR 18 = 280 ITR 462 = 192 Taxation 203=
155 Taxman 49 (Guj)
(2) Business loss ‐ Communication charges or discount towards share
call moneys – Amount was owed to the assessee company originally
by its holding company KPPL towards call money which was later
assigned to SCPL, another wholly owned subsidiary of KPPL –
Assessee company was not carrying on any business of holding of
investments – It was a debt due to the assessee on capital account –
Therefore, commutation of debt by way of discount allowed by
assessee was not deductible under s. 28 or s. 37.
Kailash Investmens (P) Ltd. v/s. CIT v/s.
(2006)200 CTR 21= 281 ITR 92= 192 Taxation 583 (Guj)
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237
(3) Loss of stock in trade – Is a business loss – Medical practitioner –
Heroin forming part of stock in trade of assessee seized – Assessee
entitled to deduct value of heroin seized from gross income as
business loss – That possession of heroin is an offence irrelevant –
Provision in s. 37, expl. relating to allowance of business
expenditure does not govern deduction of business loss.
Quereshi (Dr.) (T.A) v/s. CIT
(2006)287 ITR 547= 206 CTR 489 = 157 Taxman 514 =
(2007) 196 Taxation 740 (SC)
60. MERGER
(1) Doctrine of merger ‐ Scope of
Alagendran Finance Ltd. , CIT v/s.
(2007) 293 ITR 1 = 211 CTR 69 = 162 Taxman 465
= 201 Taxation 379 (SC)
(2) Scope of – Supreme Court – Mere dismissal of appeal as not
properly constituted as necessary party not impleaded ‐ Merger
only of final order of High Court and not reasoning ‐ High Court –
Constitution of full bench to consider that decision of High Court –
Full bench can consider correctness – Constitution of India, art. 141.
Shamugavel Nadar (S) v/s State of Tamil Nadu
(2003)263 ITR 658 = 185 CTR 593 =(2004) 179 Taxation 409 (SC)
(3) Merger of Orders ‐ During assessment proceedings, assessee was
allowed weighted deduction under section 35B in respect of 3 items
– Deduction was disallowed in respect of “export freight” ‐ Assessee
filed appeal against disallowance of weighted deduction in respect
of “export freight” – On appeal, Commissioner (Appeals) confirmed
ITO’s order – Later on, Commissioner passed an order under section
263 directing ITO to withdraw deduction allowed by him in respect
of 3 items – Whether there was merger of Assessing Officer’s order
in appellate order in respect of three items so as bar
Commissioner’s revisionary jurisdiction under section 263 – Held, no
Panna Knitting Industries, CIT v/s.
(2002) 123 Taxman 216 (Guj)
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238
61. NATIONAL TAX TRIBUNAL ACT
Appearance before National Tax Tribunal ‐Petitioner challenged
constitutional validity provisions of Act including section 13
which, inter alia, permits any person duly authorized to appear
before National Tax Tribunal – Union of India filed an affidavit
in this regard, stating that Government would make
appropriate amendments in Act to ensure that only lawyers,
chartered accountants and party‐in‐person are permitted to
appear before amendments in section 13, as stated in affidavit,
or such other amendments which Government may want to
make in Act are in fact made–Held, yes.
Writ petitions challenging validity of provisions ‐ Appropriate
changes proposed to be made in Act – Supreme Court ‐
Petitions to be heard after such amendments made – National
Tax Tribunal Act, 2005.,
Sandeep Goyal v/s. Union of India
(2008) 298 ITR 10 = 204 Taxation 388 =
(2007) 160 Taxman 171 (SC)
62. NATURAL JUSTICE, PRINCIPLES OF
(1) Licence granted ‐ Deprivation of right thereunder without
hearing – Violation of natural justice ‐
Baraka Overseas Traders v/s.Director General of Foreign Trade.
(2007) 8 RC 205(SC)
(2) Natural Justice – Conduct of Authorities ‐ Comment on
irrational conduct of authorities .
Amtek India Ltd., Assistant Commissioner,
Anti‐evasion, Commercial Taxes v/s.
(2007)8 RC 360(SC)
(3) Principles of – Scope of
Sahara India (Firm) v/s. CWT
(2008)300 ITR 403 = 169 Taxman 328 = 216 CTR 303 =
206 Taxation 180 = 7 DTR 27(SC)
(4) Natural Justice‐Principles of ‐Judicial bias– No one shall be judge
in his own cause –Principles may be excluded by statute‐Existence
of judicial bias has to be established as a matter of fact.
Vipan Kumar Jain, Union of India v/s.
(2003) 260 ITR 1 = 181 CTR 24 = 129 Taxman 59 =
174 Taxation 781 (SC)
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239
63 NEW INDUSTRIAL UNDERTAKING
(a) COMPUTATION OF CAPITAL
(1) Liabilities in respect of new industrial undertaking deductible from
aggregate value of assets of new industrial undertaking ‐ Circular
No. 380 dated April 10, 1984 – Income Tax Act, 1961, s. 80J.
Cadila Chemicals P. Ltd. , CIT v/s.
(2005) 278 ITR 633 = 199 CTR 507 (Guj)
(2) Subsidy for establishing industry in backward area – Should not be
deducted from the cost of plant and machinery for computation of
capital employed for the purpose of deduction under s. 80J.
Cadila Chemicals (P) Ltd., CIT v/s.
(2003)179 CTR 37 = 259 ITR 692 (Guj)
(3) Capital computation – Plant and machinery under erection and
building under construction – Cost of plant and machinery under
erection as also the cost of building under construction was to be
included in the capital for the purpose of deduction under s. 80J.
S.G Chemicals & Pharmaceuticals Ltd., CIT v/s.
(2002) 175 CTR 618 = 169 Taxation 679 = 258 ITR 109 (Guj)
(4) Capital computation – Actual Cost – Plant and machinery received
under loan cum grant scheme from Indian Dairy Corporation –
Government of Gujarat passed a resolution to the effect that 30 per
cent of the value thereof was to be treated as grant – Amount
received by way of grant could not be taken into account for
considering capital employed by the assessee for the purpose of s.
80J.
Mehsana District Co‐op. Milk Produceres Union Ltd. v/s. CIT
(2002) 177 CTR 333 = 258 ITR 780 (Guj)
(5) Capital Computation – Work in progress – Includible in computation
of capital employed for granting relief.
Mehsana District Co‐op. Milk Produceres Union Ltd. v/s. CIT
(2002) 175 CTR 612 (Guj)
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(b) COMPUTATION OF PROFITS
(1) Special deduction not confined to income from new units – Special
deduction to be given from total income of assessee – s. 80J.
Panna Knitting Industries, CIT v/s.
(2002) 257 ITR 195 = 175 CTR 616 = 123 Taxman 105 =
170 Taxman 671 (Guj)
(2) Section 80J, read with section 80HH, of the Income Tax Act, 1961 ‐
Deductions ‐ Profits and gains of newly established industrial
undertakings, etc. –Assessment year 1981‐82 ‐ Whether deductions
under sections 80J and 80HH are to be allowed in full without
reducing from deduction under section 80J amount of deduction
under section 80HH ‐ Held, yes ‐
Sidhpur Isabgul Processing Co. Ltd.,CIT v/s.
(2001)119 TAXMAN 245=171 CTR 106=252 ITR 777=166 Taxation
273(GUJ)
(c) Backward Area
(1) New industrial undertaking in backward areas ‐ Special Deduction ‐
Tyre retreading does not amount to production ‐ Not entitled to
relief ‐ Income Tax Act, 1961, ss. 80HH, 80J.
Tamil Nadu State Transport Corpn Ltd. v/s.CIT
(2001)252 ITR 883(SC)
(2) Special deduction ‐ Computation of capital exployed ‐ Capital
employed in machinery purchased but not installed ‐ To be taken
into account ‐ Income Tax Act, 1961, s. 80J ‐ Income Tax Rules,
1962, R. 19A(2).
Cibatul Ltd. , CIT v/s.
(2001) 252 ITR 336(SC)
(d) MANUFACTURE
(1) Mining activity – Extraction and processing of granite amounts to
“production” within the meaning of s. 80‐I – Consequently, assessee
is entitled to deduction under s. 80‐I in respect of mining activity.
Sesa Goa Ltd. , CIT v/s.
(2004) 192 CTR 577 = 271 ITR 331= (2005) 142 Taxman 16 =
185 Taxation 1 (SC)
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(2) Business of ship breaking – There is nothing whatsoever in the
process of ship breaking activity which can be termed as
manufacture or production of any article or thing – Dismantled
material already exists as a component of old ship ‐ Neither the
process of extracting steel plates from nor the process of cutting
extracted steel plates for convenient disposal is an activity of
manufacture or production of such material ‐ Merely because ship
breaking is considered as an industry, it would not be an industry
engaged in manufacture or production of any article or thing – Ship
breaking activities do not result in bringing into existence any new
article or thing ‐ Assessee engaged in the business of ship breaking
was not entitled to deduction under ss. 80HH and 80‐I.‐ Appeal
pending in Supreme Court – The decision is now superceded with
effect from 1‐4‐1991 by Taxation Laws (amendment) ordinance 2003
by adding “business of ship breaking” in Expl. 1 after cl. (i)
Vijay Ship Breaking Corpn. , CIT v/s.
(2003)181CTR 134 = 261 ITR 113 = 129 Taxman 120 =
175 Taxation 233 (Guj)
(3) Conversion of chicory root into chicory powder by roasting and
powdering –
Not manufacture – Assessee not entitled to special deductions.
Sacs Eagles Chicory v/s. CIT
(2002) 255 ITR 178 = 175 CTR 201 = 123 Taxman 221 (SC)
(4) Investment allowance & s. 80J – Manufacture or production –
Business of bleaching, dyeing, printing and processing of grey cloth –
Process carried out by the assessee amounts to manufacturing
activity ‐ Assessee entitled to investment allowance.
Kashiram Textiles Mills (P) Ltd. , CIT v/s.
(2002) 177 CTR 395 = 171 Taxation 280 (Guj)
(5) Amount received for job work, empty soda ash bardans, empty
barrels and plastic wast – Qualify for deduction.
Harjivandas Juthabhai Zaveri & Anr. , Dy. CIT
(2002) 258 ITR 785 = (2003) 132 Taxman 923 (Guj)
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(6) Computation of period of four assessment years u/s. 80J ‐ Change
of previous year ‐ Assessee started its production in the year 1973‐
74 ‐ There was no previous year for asst. yr. 1977‐78 on account of
change in previous year which was permitted by the ITO ‐ Income
for that year was subjected to tax in the asst. yr. 1978‐79 ‐ Assessee
not entitled to relief under s. 80J in the asst. yr. 1978‐79 ‐
Whenever assessee is permitted to get relief for a specified number
of consecutive assessment years, the assessment years should be
taken in the natural sequence ‐ Irrespective of the change of
previous year the period of four years will have to be reckoned on
the basis of definition of "assessment year" as contained in s.2(9)‐
Nufoam Industries , CIT v/s.
(2001) 171 CTR 171 = 252 ITR 697 = 128 Taxman 571
= (2003) 128 Taxman 571 (GUJ)
(e) PROCESSING
(1) Manufacture or processing– Manufacture of bidies ‐ Where the raw
material is subjected to a process or processes of such a nature that
it cannot be termed to be the same as the end product, and the
article produced is regarded by the trade as a new and distinct
article having an identity of its own and an independent market,
the activity amounts to manufacture or production – Tendu leaves
and tobacco which are used as inputs do not retain independent
identity after bidies are rolled ‐ Commercially, the final product is
known as a distinct commodity and has a separate market – It is
immaterial that the assessee gets the work done through contract
workers– Therefore, assessee was entitled to reliefs under ss. 80HH
and 80‐I – Further, while ascertaining the monetary limit down for
the purpose of determining whether a unit is a small scale
industrial undertaking eligible for relief under s. 80‐I, only the actual
cost of plant and machinery relatable to the industrial undertaking
has to be adopted and not all the assets of the business as a whole.
Prabhudas Kishordas Tobacco, CIT v/s.
(2006) 201 CTR 312 = 193 Taxation 442= 282 ITR 568‐
154 Taxman 404 (Guj)
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(2) Reduced rate of electricity duty – Industry engaged in processing of
goods – Business of cold storage – Not an industry engaged in
processing of goods – Rajasthan Electricity (Duty) Act, 1962 –
Notification dated November 1, 1965.
Rajasthan Ice and Cold Storage, State of Rajasthan v/s.
(2003) 264 ITR 158=(2004) 134 Taxman 259=
178 Taxation 732(SC)
(f) NEW INDUSTRIAL UNDERTAKING – (G) WHEN AVAILABLE – S. 80J
(1) Condition precedent under s. 80J(4)(iv) – Employment of 20 or more
workers – CIT(A) and the Tribunal have given concurrent finding
that the assessee is employing more than 20 workers in its
processing unit as envisaged under s. 80J(4)(iv) – Assessee entitled
to relief under s. 80J.
Gordhanbhai Jethabhai Tobacco Industries (P) Ltd., CIT v/s.
(2002) 177 CTR 339 = 123 Taxman 825 = 171 Taxation 296 =
258 ITR 727(Guj)
(2) Vis‐a‐vis expansion of existing unit – Exemption under s. 3(2)(vii)(b)
of Bombay Electricity Duty Act, 1958 – Only if a unit can be described
as a new industrial undertaking it would qualify for the exemption –
Cases of expansion of existing units, irrespective of extent of
expansion do not qualify for being called a new industrial
undertaking within the Act – Respondent admittedly using its existing
crushers, cranes, raw mills, packing machines and old cement mills
to complete the process of manufacture of cement in the new unit –
So called new unit/undertaking is thus not totally independent of
the assets of the existing unit – Physical identity with the old unit is
preserved and the new unit is an expansion of the existing
undertaking – Respondent, therefore not entitled to exemption.
Saurashtra Cement & Chemical Industries, State of Gujarat v/s.
(2003)180 CTR 81 = 260 ITR 181 = 175 Taxation 647 (SC)
(g) CARRY FORWARD
Carry forward of deficiency ‐ Condition precedent ‐ Assessee is
entitled to avail of the benefit of carry forward and set off of
deficiency in the year of profit even in the absence of
computation there of in the year of loss – s. 80J.
Nufoam Industries , CIT v/s.
(2001) 171 CTR 171 = 252 ITR 697= (2003) 128 Taxman 571 (GUJ)
Also see under heading “Deductions s. 80I”.
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64. NON RESIDENT
BUSINESS CONNECTION
(1) Accrual – Test is of “business connection” and not “permanent
establishment” – “Business connection” under Income Tax Act
different from “permanent establishment” under double taxation
avoidance law – Income Tax Act, 1961, s. 9(1)(vii) – Convention for
Avoidance of Double Taxation and the Prevention Fiscal Evasion with
Respect to Taxes on Income between India and Japan, art 5 ‐
Turkey project – Assessee carrying out offshore services – Fees for
services – Not taxable in India merely because non resident has
permanent establishment in India – Only if services are utilized in
India and they are rendered in India – Income Tax Act, 1961, ss. 5(2),
9(1)(i), Expl. (a) – Convention for avoidance of Double Taxation and
the Prevention of Fiscal Evasion with Respect to Taxes on Income
between India and Japan, arts 5, 7(1), 12(1), (2), (5) , para 6 of
Protocol.
Non resident – Overseas services – Sufficient territorial nexus with
India necessary – Two conditions for taxability – Must be utilized in
India and must be rendered in India – Income Tax Act, 1961, s.
9(1)(vii).
Ishikawajima‐Harima Heavy Industry Ltd. v/s. Director of
Income Tax, Mumbai
(2007) 288 ITR 408 = 207 CTR 361=8 RC 149 = 158 Taxman
259 =198 Taxation 103 (SC)
(2) Liability to tax – only on profits earned in India – Method
where a permanent establishment exists in India – Permanent
establishment treated as separate profit centre – Income tax
Act, 1961, ss. 4,5(2), 9 – Convention for the Avoidance of
Double Taxation between India and Korea, arts. 5(2)(c), (3),
7(1).
Hyundai Heavy Industries Co. Ltd., CIT v/s.
(2007) 291 ITR 482 = 210 CTR 178 =161 Taxman 191 (SC)
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(3) Business of prospecting etc. of mineral oil ‐Loss on account of
foreign currency fluctuation – Loss accruing to assessee, a non‐
resident company engaged in execution of oil exploration contract
awarded by the Government of India on account of foreign
currency fluctuation was not a notional loss in terms of s. 42 read
with the production sharing contract, hence allowable.
Enron Oil & Gas India Ltd., CIT v/s.
(2008) 218 CTR 641 = 173 Taxman 346 = 305 ITR 75‐
(2009) 208 Taxation 49 = 12 DTR 186 (SC)
(4) Services rendered by a non‐resident company to an Indian
company out side India – No business carried on by the Indian
company outside India – Whether fees payable to the non‐
resident consultant company fall in with the definition of fees
for technical services – Held, yes – Whether the fees for
technical service covered by exclusionary clause of section
9(1)(vii)(b) of the Income Tax Act – Held, No – TDS to be made
at lower of the two rates prescribed in II of Schedule I of
Finance Act or under DTAA.
South West Mining Ltd., Commissioner of Income Tax v/s.
(2006)190 Taxation 627(SC)
(5) Income “deemed to accrue of arise in India” – Non‐ resident
employees working on oil rigs in India – Contract providing for
“on” and “off” periods – Employees obliged to stay in U.K
during “off” periods and undergo training by attending classes
to update knowledge and be in readiness for offshore drilling
in any part of the world – Salary payable for “off” period not
income deemed to accrue or arise in India – Whether has
nexus to service in India – Not proper test – Income Tax Act,
1961, s. 9(1)(ii), Expln.
Sedco Forex International Drill Inc. v. CIT
(2005)279 ITR 310 = 199 CTR 320 = 149 Taxman 352=
(2006) 192 Taxation 27 (SC)
(6) Business Connection – Foreign company – Technical adviser to
Indian company – Remuneration in sterling paid to foreign company
– Indian company treated as agent of foreign company – Whether
part of income could be deemed to arise out of business
connection to non resident – Lack of details ‐ Lapse of long period –
Not to be determined.
New Consolidated Gold Fields Ltd., CIT (Addl) v/s.
(2002) 257 ITR 770 = 125 Taxman 959 = 178 CTR 425 (SC)
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65. NOT ORDINARILY RESIDENT
(1) Assessee non‐resident for only 3 out of 10 years – During past 7
years staying in India for 730 days – Assessee “not ordinarily
resident” – Income tax Act, 1961, ss. 5(1)I, 6(6)(a) ( Law amended) by
F.A 2003 w.e.f 1‐4‐2004 superceeding the decision.
Pradip J. Mehta v/s. CIT
(2008) 300 ITR 231 = 216 CTR 1 = 169 Taxman 454 =
206 Taxation 169 (SC)
(2) Residence – Person not ordinarily resident in India – Income earned
outside India– Not chargeable in his hands in India – Income Tax
Act, 1961, ss. 4, 5, 6.
Morgenstern Werner, CIT v/s.
(2003) 259 ITR 486 = 180 CTR 202 = 132 Taxman 214(SC)
(3) Conditions for being considered “not ordinarily resident” – Assessee
resident in India in 8 out of 10 preceding years – Present in India for
more than 730 days in preceding 7 years – Assessee not satisfying
both conditions in section 6(6)(a) for “not ordinarily resident –
Assessee not ordinarily resident – Law amended form 1‐4‐2004 in
line with the decision by F.A 2003.
Pradip J. Mehta v/s. CIT
(2002) 256 ITR 647 = 175 CTR 394 = 169 Taxation 668 =
123 Taxman 1118 (Guj)
Decision reversed by Supreme Court in (2008) 300 ITR 231 – but
Law amended by F.A 2003, w.e.f 1‐4‐2004 superceeding Supreme
Court decisions.
66. OFFENCES & PROSECUTION
(1) Company – Failure to deduct tax and deposit with Central
Government – Company can be prosecuted – Though
substantive sentence of imprisonment cannot be imposed,
fines etc. can be imposed – That penalty can be levied does
not affect prosecution – Income Tax Act, 1961, ss. 200, 201,
276B, 278B.
Company ‐ Principal officers – Prosecution for offence – No
separate notice to treat them as such necessary before
complaint – Sufficient if averments are made in complaint,
issuance of summons – Income Tax Act, 1961, ss. 2(35), 276B.
Criminal proceedings – Application for discharge of accused –
Rejected by trial magistrate and Sessions Court – High Court –
Application for discharge – Rejection – High Court need not
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give detailed reasons – Code of Criminal Procedure, 1973, s.
245.
Criminal proceedings – Delay – No failure, negligence or
inaction on the part of prosecuting agency – Delay owning to
proceedings taken and relief obtained by accused – Not ground
for any leniency –
Whether reasonable cause shown for failure ‐ Case to be
decided on basis of evidence adduced before court – Not
earlier at stage of application for discharge ‐
Madhumilan Syntex Ltd., Union of India v/s.
(2007) 290 ITR 199 = 9 RC 74 = 208 CTR 417 =
160 Taxman 71 = 199 Taxation 259 (SC)
(2) Wilful attempt to evade tax ‐ Assessment year 1985‐86 – Whether
once order of penalty has been cancelled by Tribunal, finding of
Tribunal is conclusive and prosecution cannot be sustained – Held,
yes.
H.T Power Structure (P) Ltd. V/s. R.P Sharma
(2008) 166 Taxman 122 = 299 ITR 363 = 203 Taxation 237 =
218 CTR 170 = 1 DTR 133 (Guj)
(3) Wilful attempt to evade tax – Purchase of property – Consideration
shown as far less than amount actually paid in application under
section 230A – Accused charged on two counts under IPC and one
count under Income tax Act – Accused in jail only for seven days ‐
High Court – Revision – High Court confirming charges under IPC but
setting aside conviction under Income tax Act since the excess
amount was paid by accused’s sister – Supreme Court – Appeal ‐
Peculiar facts of case and lapse of a long time – Sentence restricted
to that undergone – Matter not to be taken as precedent – Income
tax Act, 1961, ss. 136, 230A(1), 276C, 277 – Indian penal Code, 1860,
ss 193, 420, 511.
Soundarya (P) v/s. ITO
(2008)301 ITR 50 = 171 Taxman 110 = 5 DTR 113(SC)
(4) Offence under s. 13(2) r/w s. 13(1)(e) of Prevention of
Corruption Act – Ownership of unaccounted wealth – Raid by
IT authorities at the house of the accused an IAS officer, yielded
huge amount of cash, gold biscuits, foreign currency,
documents regarding purchase of immovable properties and
FDRs – Wife of the accused has deposed that the entire
unaccounted money belonged to her and that she has
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amassed the wealth by running three business concerns and
selling goods without bills – She has also accounted for the
foreign exchange recovered from the house – Similarly, she
also owned the gold ornaments and real estate – Since the
premises in question was jointly shared by the wife and the
husband and the wife having accepted the entire recovery at
her hand, it will not be proper to hold husband guilty ‐
Prosecution has not led evidence to establish that some of the
money belonged to the accused ‐ Explanation given by the
accused has been substantiated by the evidence of his wife
and other witnesses produced on his behalf – Further, the
entire money has been assessed by the IT Department in the
hands of the wife – Therefore, accused cannot be held guilty
of offence under the Prevention of Corruption Act – Acquittal
upheld.
Inbasagaran K., Dy. Superintendent of Police, Chennai v/s.
(2006)200 CTR 624=282 ITR 435 = 153 Taxman 326 (SC)
(5) Offence under ss. 276C and 277 – Quashing of proceedings ‐
Applications filed by the appellant seeking discharge under s.
245(2) of the CrPC were dismissed by magistrate and petitions
filed under s. 482 of the CrPC also dismissed by the High
Court ‐ Contention that subsequently penalty proceedings set
aside by Tribunal and High Court declined reference – No
opinion needs to be expressed about the effect of those
orders ‐ In case the appellant files any application for
discharge before the magistrate on that ground, same is to be
decided by the magistrate in accordance with law – V. Gopal
v/s. Asstt. CIT (1994) 207 ITR 971 (Mad) affirmed.
Gopal (V) v/s. Asstt. Commissioner
(2005) 193 CTR 392 =142 Taxman 549 = 185 Taxation 439 =
279 ITR 510 (SC)
(6) Company or corporate body – Where imprisonment
compulsory ‐ Can be prosecuted – Punishment with fine alone
permissible.
Standard Chartered Bank v/s. Directorate of Enforcement.
(2005) 274ITR 81=145 Taxman 154 =195 CTR 465=
188 Taxation 360(SC)
[but see case at No. 26 above ]
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(7) Delay in filing return ‐ Complaint filed by ITO as tax liability on
assessment was more than Rs. 3,000 – Liability reduced to less
than Rs. 3,000 in appeal before Appellate Tribunal –
Prosecution not maintainable–Income Tax Act,1961, ss. 276CC,
prov. (ii)(b), 278B – Code of Criminal Procedure, 1973, s. 482.
Guru Nanak Enterprises v/s. ITO
(2005) 279 ITR 30 = 149 Taxman 565 = 199 CTR 710=
(2006) 192 Taxation 855 (SC)
(8) Offence under ss. 276C and 278B – Cancellation of penalty under s.
271(1)(c)–Assessee had filed revised returns estimating higher cost
of construction of flats built by it – Revised returns were accepted
by the Department and the assessments were completed accordingly
– Difference between the income as per original returns and the
income shown in the revised returns was treated as concealed
income and penalty under s. 271(1)(c) was levied in all the four years
– Penalties however cancelled by giving effect to the order of the
Tribunal in appeal – Levy of penalties and prosecution under s. 276C
are simultaneous ‐ Hence, once the penalties are cancelled on the
ground that there is no concealment, the quashing of prosecution
under s. 276C is automatic – If the Tribunal has set aside the order of
concealment and penalties, there is no concealment in the eyes of
law and, therefore, the prosecution cannot be proceeded with by
the complainant and further proceedings will be illegal and without
jurisdiction – Further, the charge of conspiracy has not been proved
to bring home the offence under s. 120‐B, IPC – In the absence of
dishonest and fraudulent intention, the question of committing
offence under s. 420, IPC also does not arise.
K.C Builders v/s. Asst. CIT
(2004)186 CTR 721 =265 ITR 562 = 135 Taxman 461=
179 Taxation 418 (SC)
(9) Failure to file return “in due time” – “Due time” is that specified for
furnishing return in sub‐sections (1) and (2) of Section 139 –
Permissibility under sub‐section (4) for filing return before
assessment – Does not extend time prescribed for filing return –
Income Tax Act, 1961, ss. 80, 139(1), (2), (4), 276CC.
Mens Rea ‐Court has to presume culpable state of mind – Casus
omissus – Marginal note.
Prakash Nath Khanna v/s. CIT
(2004)266 ITR 1=187 CTR 97 =135 Taxman 327 =
180 Taxation 18(SC)
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(10) Settlement of cases – Complaint of offences with previous sanction –
Application for settlement made prior to lodging of complaint – High
Court rejecting application to have prosecution quashed ‐ Appeal to
Supreme Court – Settlement Commission accepting settlement and
granting immunity from prosecution in the meantime – Proceedings
quashed by Supreme Court ‐ Income Tax Act, 1961, ss. 245C,
245D(1), 245F, 245H, 279 – Code of Criminal Procedure, 1973, s. 482.
Ashirvad Enterprises v/s. State of Bihar
(2004)266 ITR 578=187 CTR 609 =180 Taxation 319=180 Taxation
217= 137 Taxman 455 (SC)
(11) False statement in verification – Abetment of false return ‐
Prosecution in relation to offence of misappropriation under penal
code – Proceedings pending – Pardon granted to accused subject to
making full and complete disclosure – Does not enure in relation to
prosecution under provisions of Income Tax Act – Department not to
pursue prosecution for offences under Income Tax Act until after
accused had given evidence in the case of misappropriation and only
if accused had not made complete disclosure in that case.
Dipesh Chandak v/s. Union of India
(2004) 270 ITR 85 = 191 CTR 145 = 140 Taxman 166=
(2005) 184 Taxation 17 (SC)
(12) Where imprisonment compulsory ‐ Company cannot be proceeded
against ‐ Income Tax Act, 1961, ss. 276C, 277, 278, 278B
‐ Mens Rea ‐ Wilful attempt to evade tax – False statement in
verification – Abetment of false statement ‐ Mens Rea of person in
charge of affairs ‐ Can be attributed to company ‐ Prosecution –
Sanction of Commissioner – Nature of – Administrative – Holding
enquiry before ‐ Not necessary ‐ Income Tax Act, 1961, s. 279 ‐
Compounding ‐ Not a right of accused – Income Tax Act, 1961, s.
279(2).
Velliappa Textiles Ltd., Asstt. Commissioner v/s.
(2003) 263 ITR 550= 132 Taxman 165 = 184 CTR 193 =
177 Taxation 354 (SC)
(13) Offence under s. 276DD – Omission of s. 276DD w.e.f 1st April, 1989
– Sec. 276DD stood omitted from the Act and not repealed –
“Omission” of a provision is different from a ‘repeal’ and s. 6 of the
General Clauses Act applies only to a repealed law and not to
omission – Hence, prosecution under s. 276DD could not have been
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launched or continued by invoking s. 6 of the General Clauses Act
after its omission – Reference to larger Bench is not called for.
General Finance Co. & Anr. V/s. CIT
(2002) 176 CTR 569 = 257 ITR 338 = 124 Taxman 432 =
171 Taxation 178 (SC)
(14) Settlement of cases – Settlement Commission granting immunity
from prosecution “in respect of matters arising out of settlement” –
Effect – Total immunity in regard to fictitious transaction – Not
confined only to specific assessment year ‐ High Court ‐ Not
entitled to declare order granting immunity as illegal or void.
Nirmal and Navin P. Ltd. v/s. D. Ravindran
(2002) 255 ITR 514 = 175 CTR 407 = 123 Taxman 540=
(2003) 172 Taxation 473 (SC)
67. OTHER SOURCES – INTEREST
(1) Consideration for surrender of tenancy rights – AO taxed the
impugned amount which was allegedly received on surrender
of tenancy right as casual and non recurring receipt ‐ Tribunal
was only required to decide the issue of taxability of said
receipt as income from other sources as held by the CIT(A), or
non taxability of the amount as being compensation for
relinquishment of tenancy rights ‐ Tribunal, however, recorded
contradictory findings as to the nature of said receipt and also
restored the matter to the AO to ascertain the same –
Therefore, appeal is restored to the Tribunal for fresh decision.
Sheelaben M. Patel v/s. ITO
(2006)200 CTR 646 = 193 Taxation 121=
(2007) 290 ITR 189 (Guj)
(2) Assessee, a co‐operative society. Was in process of setting up its
business of manufacturing filament year – Assessee in its return
disclosed nil income stating that production had not yet started and
loss was to be capitalized after production started ‐ Interest income
and miscellaneus income which assessee received during relevant
previous year was revenue in nature required to be taxed as
income other sources and these receipts were not to be treated as
reduction in project cost .
Petro‐Fils Co‐operative Ltd., CIT v/s.
(2003) 127 Taxman 498(Guj)
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(3) Income or Casual and non recurring receipt ‐Consideration for
surrender of tenancy rights – Prior to the amendment of s. 55(2) in
1995 the settled law was that if the cost of acquisition of a capital
asset could not be determined, the transfer of such capital asset
would not attract capital gains tax – In the instant case
Department’s stand before the High Court was that the cost of
acquisition of the tenancy was incapable of being ascertained –
Thus, even though monthly tenancy or leasehold right is admittedly
a capital asset and the receipt on its surrender is a capital receipt
s. 45 could not be applied for the assessment year in question as it
fell in the pre‐amendment period ‐ Sec. 56 provides for the
chargeability of income of every kind only if it is not chargeable to
tax under any of the heads specified in s. 14 items A to E ‐ If the
income is included under any one of the heads it cannot be brought
to tax under the residuary provisions of s. 56 – Consideration for
surrender of tenancy would be assessable, if at all under item E of s.
14 ‐ That being so, it cannot be treated as a casual and non
recurring receipt under s. 10(3) and be subjected to tax under s. 56
– If the income cannot be taxed under s. 45, it cannot be taxed at
all.
Cadell Weaving Mill Co.(P)Ltd. & Anr.,Union of India & Anr.
V/s.
(2005) 193 CTR 578 = 273 ITR 1 =142 Taxman 713(SC)
(4) Income from other source or Business Income ‐ Assessment year
1985‐86 – Assessee trust was carrying on certain business – By a
partnership deed, assessee trust and one another trust became
partners of a firm ‐ As per terms and conditions of partnership deed
goodwill of erstwhile business was to remain exclusively with
assessee trust – Subsequent, upon retirement from partnership,
assessee trust ceased to carry on business and permitted other trust
to use name and good will of erstwhile business for a monthly
compensation of Rs. 35,000/‐ Assessee Officer assessed said
amount under head income from business – Since assessee had
stopped doing business altogether, assets, viz name and goodwill,
ceased to have character of business was assessable under head
‘Income from other sources’.
Nijrang Specific Family Trust, CIT v/s.
(2006) 155 Taxman 470 = 205 CTR 144 = 287 ITR 148=
(2007) 196 Taxation 215 (Guj)
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(5) Interest on securities – Other Sources – Method of computation of
special deduction under section 80L – Interest on compulsory deposit
– Interest cannot be set off against deficit in dividend income –
Assessee entitled to special deduction under section 80L in respect
of interest on compulsory deposit.
Apoorva Shantilal Shah (HUF), CIT v/s.
(2002) 255 ITR 390 = 174 CTR 612 = 169 Taxation 51 =
(2003) 128 Taxman 525 (Guj)
(6) Interest – Amount borrowed for purchase of shares – Finding that
such shareholding had entirely been transferred to subsidiary
company ‐ Interest on amount borrowed not deductible .
Kalindi Investment P. Ltd. v/s. CIT
(2003) 260 ITR 261 = 129 Taxman 219(Guj)
(7) Payment to advocate for his advice on consultancy assignment
– Assessee was retained by GSIC for conducting a study and
rendering his opinion on separation of scooter project as a
separate company ‐ such study included tax implications and
financial requirement too – Assessee paid certain amount to
an advocate for his advice on tax and legal implications of the
said project – Said payment fulfills all the requirements of s.
57(iii) – Hence, it is allowable as deduction.
Bhagwatilal G. Shah v/s. CIT
(2005)196 CTR 8 =146 Taxman 412 =277 ITR 277=189 Taxation
594 (Guj)
(8) Deduction under s. 57(iii) – Communication charges or discount
towards share call moneys – It was a debt due to the assessee on
capital account ‐ Debt commuted by way of discount – No
expenditure was incurred for the purposes of earning or making
income – Therefore, commutation amount is not deductible under
s. 57(iii).
Kailash Investmens (P) Ltd. v/s. CIT v/s.
(2006)200 CTR 21= 281 ITR 92 = 192 Taxation 583 (Guj)
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254
68. OWNERSHIP
(a) OF BUSINESS
(1) Assessability of income ‐ Assessee claimed that the firm
consisting of assessee & his wife was dissolved on 19‐1‐1990 &
the hotel business belonged to him alone – Loss from hotel
business claimed for set off against the income surrendered
during search taking place after 18‐1‐1990 – AO treated the
hotel business as belonging to firm & not to the assessee –
Tribunal on appreciation of facts that (i) accounts of firm were
not made up (ii) during statement recorded under section 13(4)
the assessee did not state about dissolution of firm treated the
hotel business as belonging to assessee ‐ Reference answered
against the assessee & in favour of revenue.
Shardaben Rasiklal Acharya Wife v/s. CIT
(2008)205 Taxation 315 =218 CTR 46=305 ITR 442=
5 DTR 281(Guj)
(b) PROPERTY INCOME
Chargeable as ‐ Assessment year 1979‐80 ‐ Assessee's accounting
period for assessment year 1979‐80 commenced on 1‐7‐1977 and
ended on 30‐6‐1978 ‐ Assessee had entered into an agreement for
sale on 28‐2‐1977 whereby industrial undertaking and assessee's
business were transferred to vendee ‐ Pursuant to said agreement a
deed of assignment was executed on 28‐6‐1977 and immovable
properties which were part and parcel of industrial undertaking
were transferred under duly executed registered document on 2‐
2‐1978 ‐ ITO was of view that as assessee was legal owner of
property in question till conveyance was duly registered,
proportionate property income, i.e from 1‐7‐1977 to 2‐2‐1978
should be assessed in hands of assessee ‐ Since assessee was left
merely with technical or formal ownership of property, there was
no justification to tax proportionate property income in hands of
assessee ‐ Held, yes ‐ Whether assessee could be said to be a legal
owner of property till conveyance was duly registered Held, no ‐
Sarabhai Chemicals (P) Ltd., CIT v/s.
(2001)119 TAXMAN 611(GUJ)
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255
69. PENALTY
(a) AMNESTY
Penalty under ss. 271(1)(a), 271(1)(c) and 273(2)(a) – Immunity
under amnesty scheme ‐Disclosure of income after search by way of
revised returns – In view of findings of fact of the Tribunal based on
appreciation of evidence on record to the effect that the declaration
made by the assessee was voluntary before detection by the
Department because the Department was not in a position to point
out any concrete material to establish concealment it was justified
in canceling the penalties under ss. 271(1)(a), 271(1)(c) and
273(2)(a) by extending immunity under the amnesty scheme and
the factum of mere filing of revised returns on a number of
occasions cannot show that returns were not voluntary.
Taktawala, C.A, CIT v/s.
(2008) 219 CTR 529 = 14 DTR 34(Guj)
(b) CASH DEPOSITS
(1) Penalty – s. 273‐B ‐ Deposits in cash in excess of specified limit –
Effect of section 273B – Reasonable explanation for such deposits –
Penalty cannot be imposed ‐ Purchase of goods – Balance due
adjusted by book entries ‐ No intention to evade tax – Penalty could
not be imposed‐ Income Tax Act, 1961, ss. 269SS, 271D, 273B.
Bombay Conductors and Electricals Ltd., CIT v/s.
(2008)301 ITR 328 = 205 Taxation 259 = 173 Taxman 434(Guj)
(2) Deposits and loans in cash in excess of prescribed limit –
Finding that amounts were mere book entries and
transactions on behalf of family members ‐ No violation of
sections 269SS and 269T – Penalty could not be imposed ‐
Income tax Act, 1961, ss. 269SS, 269T, 271D, 271E.
Natvarlal Purshottamdas Parekh, CIT v/s.
(2008)303 ITR 5 = 205 Taxation 237 = 219 CTR 509=4 DTR 37 (Guj)
(c) CONCEALMENT
(1) Concealment of income – Search and seizure – Finding that income
had been concealed – Immunity from penalty – Scope of Explanation
5 to section 271(1)(c) – Sufficient if disclosure is made and tax is
paid before completion of assessment – Statement need not specify
manner in which income was earned – Income tax Act, 1961, s.
271(1)(c).
Mahendra C. Shah, CIT v/s.
(2008) 299 ITR 305 = 215 CTR 493 = 205 Taxation 251 =172 Taxman
58 = 3 DTR 1(Guj)
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256
(2) Disclosure of additional income in revised returns after search and
seizure – Tribunal having upheld the findings of the CIT(A) canceling
the levy of penalty under s. 271(1)(c) holding that the assessments
were made totally on the basis of estimated income disclosed by
the assessee in the revised returns rather than on the basis of
incriminating materials found during the search, High Court was
precluded from entering into any discussion regarding the perversity
of finding of fact recorded by the Tribunal and setting aside the
same in the absence of any challenge to the findings of fact on the
ground of perversity ‐ Penalty under s. 271(1)(c) was not exigible on
the facts and circumstances of the case.
Sudarshan Silks & Sarees v/s. CIT
(2008)216 CTR 12=300 ITR 205 =169 Taxman 321=
206 Taxation 195 = 5 DTR 261(SC)
(3) Whether amendment retrospective amendment ‐ Assessment at loss
– Decision in Virtual Soft Systems Ltd. V/s. CIT (2007) 207 CTR(SC)
733 : (2007) 9 SCC 665 that the amendment made by Finance Act,
2002 in Expln. 4 to s. 271(1)(c) is not retrospective and is effective
from 1st April, 2003, and cannot be applied in respect of any period
prior to the said date needs reconsideration.
Ramanlal C Hathi, CIT v/s.
(2008) 217 CTR 105 = 171 Taxman 479 = 7 DTR 404(SC)
(4) Dropping of proceedings ‐ No reasons assigned by AO ‐ having
passed cryptic order dropping proceedings under s. 271C and which
order was held to be erroneous and prejudicial to the interest of
Revenue ‐ No interference was called for with the order of High
Court remanding the matter to the AO requiring him to pass a
reasoned order.
Toyota Motor Corporation v/s. CIT
(2008)218 CTR 539 =173 Taxman 458= 306 ITR 52 = 12 DTR 106 (SC)
(5) Provision for imposing penalty even if after addition of concealed
income there was no positive income – Is clarificatory and
retrospective in nature – Applies with effect from April 1, 1976 –
Income Tax Act, 1961, s. 271(1)(c)(iii), Expl. – Circular No. 204, dated
July 24, 1976.
Gold Coin Health Food (P) Ltd., CIT v/s.
(2008) 304 ITR 308=72 Taxman 386 = 206 Taxation 147 =
218 CTR 359 = 11 DTR 185 (SC)
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257
(6) Immunity under Amnesty Scheme ‐ Disclosure of additional
income after show cause notice ‐ AO having detected
concealment of income by the assessee before show cause
notice, assessee is not entitled to benefits of the Amnesty
Scheme in respect of additional income declared by in the
revised return which was filed pursuant to said show cause
notice and, therefore, levy of penalty under s. 271(1)(c) was
justified ‐
Deepak Construction Company v/s. CIT
(2007)208 CTR 444 = 199 Taxation 485 = 293 ITR 285 =
= 164 Taxman 334 (Guj)
(7) Penalty under s. 271(1)(c) – Concealment ‐ Revised return –
Excise raid – Processing charges not shown in accounts – Held
penalty leviable – Section 271(1)(c). Income Tax Act, 1961 –
Section 271(1)(c).
Kholwadwala Dyeing & Printing Mills v/s. CIT
(2007)197 Taxation 304 =(2008) 296 ITR 475 (Guj)
(8) Wrong claim of depreciation – CIT(A) and the Tribunal having
found that the assessee had no intention to conceal facts when
it made incorrect claim of depreciation which was withdrawn
by the assessee, penalty under s. 271(1)(c) was not leviable for
making the wrong claim.
Manibhai & Bros, CIT v/s.
(2007) 209 CTR 46 =198 Taxation 175 = 294 ITR 501(Guj)
(9) Furnishing inaccurate particulars – Capital gains – Assessee
enclosing registered valuer’s report on support of capital gains
– Valuer’s report not accepted by Assessing Officer – Matter
referred to District Valuation Officer – Assessment of capital
gains on basis of District Valuation Officer’s report ‐ Basis of
registered valuer report not shown to be wrong – Does not
amount to furnishing inaccurate particulars ‐ Penalty not
leviable ‐Income Tax Act, 1961, ss. 55A, 271(1)(c).
Imposition not automatic – Is a matter of discretion – Assessing
Officer has to be fair and objective ‐ Income Tax Act, 1961, s.
271(1)(c).
Dilip N. Shroff v/s. Joint CIT
(2007) 291 ITR 519 = 210 CTR 228=161 Taxman 218 =
201 Taxation 53 (SC)
But see Dharmendra Textiles Case 295 ITR 244(SC)
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258
(10) Burden of proof – Order imposing penalty being quasi –
criminal in nature, burden lies on the Department to establish
that assessee had concealed his income – If an explanation
given by the assessee has been treated as bona fide, the
question of failing to discharge the burden under Explanation
to s. 271(1)(c) would not arise.
Ashok Pai, T v/s. CIT
(2007) 210 CTR 259 =161 Taxman 340 = 292 ITR 11 =
201 Taxation 390 (SC)
(11) Addition on account of change in method of accounting ‐ Earlier
method was accepted by the Department in the past – However,
when the Department sought to take a different stand in the year
under consideration, assessee submitted a revised return offering
the said item for taxation and accepted the assessment – Assessee
was entitled to hold a bona fide belief that the uncertified work‐
in‐progress was not liable to be treated as a taxable item, and
penalty under s. 271(1)(c) could not be levied for non disclosure
thereof in the original return.
J.H Parabia (Transport) (P) Ltd., CIT v/s.
(2006)201 CTR 98= 284 ITR 361 =193 Taxation 358Guj)
(12) Suppression of sales – During the course of search several loose
slips in the form of kachcha bills were found by the Sales tax
authorities – Out of 22 kachcha bills issued only 5 bills were
found – Facts and circumstances are consistent with only one
hypothesis and that is that the amount in question represents
the concealed income of the assessee – Tribunal was justified
in confirming the penalty of Rs. 30,000 levied under
s.271(1)(c).
G.S Nanjee & Sons v/s. CIT
(2006)201 CTR 393 = 284 ITR 172 =154 Taxman 40=
193 Taxation 426(Guj)
(13) Bonafides ‐ Where assessee had bona fide belief that loss
occurred as a result of destruction of assets such as plant and
machinery, buildings, electrical installations, etc. and was of
revenue nature on basis of advice received from its
chartered accountant and claimed it by way of deduction, it
would not be a case of concealment within ambit and scope of
section 271(1)(c) penalty deleted‐Assessee claimed an amount of
Rs. 1,00,112 on account of loss of stock due to fire – Assessing
Officer noted that assessee had claimed double deduction of
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259
amount of Rs. 1,00,112 as said amount was debited to consumption
of raw material account and it was also debited to profit and loss
account under head “Goods lost in fire” – Assessing Officer,
therefore added same to income of assessee – Assessing Officer
also levied penalty under section 271(1)(c) –Tribunal cancelled
penalty holding that double claim for an amount in question was
made due to some bona fide mistake on part of assessee – Tribunal
was justified in doing so .
BTX Chemicals (P) Ltd. v/s. CIT
(2006)155 Taxman 644 = 205 CTR 252 =
(2007) 288 ITR 196 = 196 Taxation 238(Guj)
(14 ) Agreed addition vis‐à‐vis gross or willful negligence ‐ Assessee having
persistently maintained incorrect and incomplete accounts and
conceded substantial additions year after year including the
relevant assessment year‐ If income was assessed by application of
s. 145, there would be presumption that income was not properly
returned & if there is repeated conduct year after year, there is
inform that there is gross/wiful neglect on its part and, therefore,
penalty under s. 271(1)(c) was sustainable.
Chandra Vilas Hotel, CIT v/s.
(2006) 206 CTR 214=(2007) 196 Taxation 245 =
291 ITR 202 =163 Taxman 298(Guj)
(15) Burden of proof ‐ Concealment of income ‐ Manufacture of salt –
Loss due to cyclone and rain – Difference in estimation of loss
between assessee and Assessing Officer – No concealment of
income – Penalty cannot be imposed ‐ Income Tax Act, 1961, s.
271(1)(c).
Valimkbhai H. Patel, CIT v/s.
(2006) 280 ITR 487 = 201 CTR 113 = 192 Taxation 317 (Guj)
(16) Concealment – Wrong claim for deduction – Cost of wires wrongly
shown as ‘consumable stores’ – Tribunal found that the assessee
itself offered the same for disallowance during the course of
assessment proceedings before the AO had detected this fact, and
accordingly accepted the bona fides of the assessee – Nothing
has been brought on record by the Revenue to suggest that the
finding of the Tribunal is incorrect in any manner whatsoever –
Thus, assessee was not therefore liable for penalty under s.
271(1)(c).
Union Electric Corporation, CIT v/s.
(2006) 200 CTR 636 = 281 ITR 266 = 193 Taxation 125 (Guj)
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260
(17) Concealment of income ‐ Order of penalty must clearly state
whether it is for concealment or for furnishing inaccurate
particulars – Order stating penalty was for any one of the
offences – Not valid.
New Sorathia Engineering Co. v/s. CIT
(2006) 282 ITR 642 = 202 CTR 188 = 155 Taxman 513 (Guj)
(18) Returned income less than 80 per cent of assessed income –
Burden on assessee to prove there was no concealment of
income ‐ Tribunal considering facts and finding that burden
had been discharged – Cancellation of penalty ‐ Justified –
Income Tax Act, 1961, s. 271(1)(c).
Peass Industrial Engg. Pvt. Ltd. , CIT v/s.
(2005) 274 ITR 437=195 CTR 326 = 187 Taxation 102=
147 Taxman 114 (Guj)
(19) Revenue authorities not disputing the fact that clandestine
removal of goods, if any, was made by or at the behest of
erstwhile management of the company – Clear finding recorded
by the AO to that effect ‐ Penalty for concealment and/or
furnishing inaccurate particulars of income could not be imposed
on the Official Liquidator–Tribunal justified in deleting the same.
Poly Steels (India) Ltd. , CIT v/s.
(2005) 196 CTR 20 = 277 ITR 499 =189 Taxation 393=
(2006) 152 Taxman 357 (Guj)
(20) Wrong claim for extra‐shift depreciation allowance – Tribunal found
from the facts on record that the claim for extra‐shift allowance was
made by oversight, as both before and after the claim, the returned
income was nil – It was specifically pleaded by the assessee before the
Tribunal that the mistake was committed due to oversight and that the
assessee could not have been benefited in any way by claming higher
depreciation as the total depreciation is allowable only to the extent of
cost of plant and machinery – Thus, the grievance of the Revenue that
such reasoning was supplied by the Tribunal on its own is factually
incorrect – Even otherwise, it was the duty of the Tribunal to arrive at
a decision in accordance with the scheme envisaged by the
provisions – No infirmity in the impugned order of the Tribunal –
Penalty under s. 271(1)( c) rightly cancelled.
Glow Tech Steels (P) Ltd., CIT v/s.
(2005) 196 CTR 177 = 148 Taxman 289 = 189 Taxation 588 =
(2006) 280 ITR 133 (Guj)
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261
(21) Assessment year 1984‐85 – During course of assessment
proceedings, Assessing Officer found that assessee society had
received a sum, from insurance company on withdrawal from an
Group Insurance Scheme, being premium paid in earlier years
and allowed as deduction in past assessments – Assessing Officer
brought said amount to tax under section 41(1) – Assessing
Officer also levied penalty upon assessee under section 271(1)(c)
rejecting assessee’s explanation that instead of routing said
receipt through profit and loss account, same was directly
credited to gratuity fund account and because of that bona fide
mistake, while preparing return of income, amount received from
insurance company was not included in total income – Whether
since omission had occurred not with intention but due to
oversight and there was nothing on record to show that any
particular individual member of assessee society had any
personal interest in committing act of omission, no penalty was
exigible on assessee under section 271(1)(c) – Held, yes.
Dahod Sahakari Kharid Vechan Sangh Ltd. V/s. CIT
(2005)149 Taxman 456=(2006) 200 CTR 265=
190 Taxation 769 =282 ITR 321(Guj)
(22) Returned income less ‐ Returned income less than 80 per cent of
assessed income ‐ Presumption of concealment of income – Finding
that assessee had not been able to explain payments without
sufficient cash balance – Imposition of penalty valid – Income Tax Act,
1961, s. 271(1)(c).
Usha Fertilizers v/s. CIT
(2004) 269 ITR 591(Guj)
(23) Concealment – Unexplained money – Assessee had made payments on
certain dates when sufficient cash was not available with it – Addition
made by ITO confirmed in appeals – Explanation of the assessee that
it had borrowed certain funds and the accountant has failed to pass
the necessary credit entries was not substantiated ‐ Further, assessee
kept the accountant away from the scrutiny during the course of
inquiry on the pretext that he could not be produced on account of
strained relations – Therefore, it failed to discharge the onus which lay
on it – Assessee cannot be granted a second innings to prove its case –
Penalty rightly upheld.
Usha Fertilizers v/s. CIT
(2002) 178 CTR 153 (Guj)
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262
(24) Presumption of concealment – Bona fide belief that income had not
accrued ‐ Presumption of concealment not applicable – Penalty not to
be levied.
Sarabhai Chemicals Pvt. Ltd., CIT v/s.
(2002) 257 ITR 355 = 173 CTR 193 = 121 Taxman 755 (Guj)
(25) Assessee filing returns showing negligible income – Search and
seizure operation carried on assessee and assessment reopened –
Assessee filing revised returns declaring higher income – Revenue
imposing penalty ‐ Tribunal while remitting penalty holding that
since the burden of proving concealment not discharged by
Revenue, penalty could not be levied – Penalty remitted – Revenue
filing reference ‐ Held, Tribunal justified in its decision.
Suresh Chandra Mittal , CIT v/s.
(2002) 167 Taxation 348 (SC)
(26) Concealment of income – Extent of concealment ‐ Question of fact –
Admission of assessee regarding concealment of particular amount
‐ Tribunal justified in levying penalty with reference to such
amount–
Lallubhai Jogibhai Patel v/s. CIT
(2003) 261 ITR 216 =174 Taxation 551=182 CTR 371 = 182 CTR 371
= (2004) 134 Taxman 381( (Guj)
(27) Assessee a partnership firm ‐ Internal audit detecting some mistakes
in totalling of amount – AO issuing a show‐cause notice to the
assessee – Assessee admitting the mistakes ‐ Matter referred by AO
to CIT for applying provision of section 263 – Assessment set aside
and matter remanded to AO – AO imposing penalty for
concealment ‐ Tribunal holding since assessee before levying of
penalty admitting mistakes in totalling, there was no intention of
the assessee to conceal income – Penalty remitted – Held, finding of
the Tribunal being a finding of the fact, penalty rightly remitted.
Milex Cable Industries , CIT v/s.
(2003) 174 Taxation 58 = 261 ITR 675 = 182 CTR 442 (Guj)
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263
(28) Excessive claim for depreciation ‐ Valuer’s report was produced
during the proceedings which showed the value of land and the
superstructure separately ‐ As regards depreciation on movable
assets taken over, it was claimed on the basis of price mutually
agreed ‐ It is not the case of the Revenue that the agreement was
sham – ITO had sufficient material before him to decide whether
to allow depreciation on WDV or to accept higher value ‐ Thus, it
cannot be said that there was any concealment of material
particulars ‐ Penalty under s. 271(1)( c) rightly deleted.
Hotel Sabar (P) Ltd., CIT v/s.
(2003) 183 CTR 573 =177 Taxation 66= 264 ITR 381 (Guj)
(29) Concealment ‐ Year of assessment of capital gains ‐ As the
assessee did not disclose the capital gains arising on compulsory
acquisition of land in the relevant assessment year under the
belief that the capital gains would be liable to tax only on receipt
of compensation ‐ Capital gains were disclosed in the return of later
year ‐ On these facts, penalty under s. 271(1)(c) could not be levied
and therefore CIT could not assume jurisdiction under s. 263.
Manilal Tarachand, CIT v/s.
(2001) 170 CTR 466(GUJ)
(30) Unexplained cash credits ‐ Merely because addition has been made
by invoking the provisions of s. 68 penalty under s. 272(1)(c) would
not follow as a natural corollary ‐ De hors the said provision it
cannot be stated with certainly that the assessee has failed to return
the correct income due to any fraud or any gross or wilful neglect on
its part ‐ Assessee has merely conceded that the entries in question
may be treated as its income by virtue of provisions of s. 68 ‐
Tribunal has recorded a finding of fact that there is no instance to
show that the assessee had been earning business income outside
books in the past or in the year under consideration ‐ Penalty could
not be sustained.
Jalaram Oil Mills, CIT v/s.
(2001)171 CTR 426(GUJ)
(31) Assessment year 1986‐87 ‐ Assessing Officer noticed that a demand
draft and telegraphic transfer were not entered by assessee in its
cash book on dates on which same were purchased or made ‐
Assessee explained that as sufficient cash balance was not available
to it on dates of transaction, it had obtained hand loans from
friends and as it was expected to repay such loans within short time,
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no entries were made in books of account in respect thereof ‐
However, since assessee was unable to furnish evidence for such
loans, it offered amount of transaction as additional income ‐
Assessing Officer found explanation to be unacceptable and
applying Explanation 1(B) of section 271(1)(c), imposed penalty ‐
Whether Assessing Officer was justified in levying penalty ‐ Held,
yes ‐ Whether no express invocation of Explanation to section
271 in notice under section 271 is necessary before provisions of
Explanation therein are applied ‐ Held, yes.
Madhusudhanan, K.P v/s. CIT
(2001) 118 TAXMAN 324 = 169 CTR 489,(SC)
(32) Revised return filed showing higher income ‐ Assessee surrendered
the income after persistent queries by AO ‐ However, revised
returns have been regularised by Revenue ‐ Explanation of the
assessee that he has declared additional income to buy peace and
to come out of vexed litigation could be treated as bona fide ‐
Penalty rightly cancelled ‐ No interference warranted –
Surendra Chandra Mittal , CIT v/s.
(2001) 170 CTR 182(SC)
(33) Explanation ‐ Concealment ‐ Addition on estimate basis ‐ Seized
material has to be read and accepted as a whole and it is not
permissible to make further estimates therefrom unless and until
there is cogent material to undertake such an exercise ‐ ITO made
estimates at three stages after processing the seized material to
make addition of estimated profit on sales outside the books of
account ‐ Explanation to s. 271(1)(c) cannot be invoked ‐ Even if said
explanation is held to be applicable on account of arithmetical
difference, it can be said that the assessee has rebutted the
presumption i.e discharged the burden ‐ Further, it is categorically
stated in the assessment order that the facts for the year are
similar to that of earlier year ‐ Penalty was cancelled in the earlier
year ‐ Penalty under s. 271(1)(c) not sustainable.
Navjivan Oil Mills v/s. CIT
(2001) 170 CTR 224 = 124 Taxman 392(GUJ)
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265
(34) Expln. 1 ‐ Concealment ‐ Seizure of P & L a/c. ‐ During the
assessment proceedings the lower authorities as well as the
Tribunal came to the conclusion that the P & L a/c seized from the
residence of managing partner related to assessee firm ‐ During the
penalty procedings, Tribunal construed it as not relating to assessee
firm ‐ High Court did not answer the questions referred to it and
remanded the matter to the Tribunal for fresh consideration ‐
Approach of the High Court not correct ‐ High Court ought to have
answered the questions having regard to the facts found by the
Tribunal ‐ Reference restored to the High Court to be heard and
disposed of afresh.
Kerala Liquor Corporation v/s. CIT
(2001) 170 CTR 183(SC)
(35) Non disclosure of payment of interest to partner ‐ Assessee firm had
shown that a sum was paid to one PH by way of interest on
deposit ‐ Assessee did not reveal that PH was another name of one
of its partners ‐ This was done with a view to avoid disallowance
under s. 40(b) ‐ By no stretch of imagination it can be said that the
assessee firm did not know that PH was one of the partners ‐
Question of concealment of particulars is a question pertaining to
intention of the assessee ‐ As the assessee has not clarified the said
position it can be said that it has made an effort to conceal
particulars of its income ‐ Tribunal was right in uholding the
penalty.
Ganesh Textile v/s. CIT v/s.
(2001) 171 CTR 167 (GUJ)
(d) DELAY IN FILING RETURN
Reasonable cause for delay – Question of fact – Delay due to
belief that because of Supreme Court decision capital gains tax
was not payable ‐ Tribunal justified in deleting penalty for
part of period – Income tax Act, 1961, s. 271(1)(a).
Kanubhai Muljibhai Patel, CIT v/s.
(2008) 306 ITR 179 = 205 Taxation 271 = 4 DTR 150(Guj)
(e) FAILURE TO DEDUCT TAX AT SOURCE
(1) Payment to contractor – Assessee not liable to deduct tax at
source ‐ Tribunal deleting penalty ‐ Justified – Income tax Act,
1961, ss. 194C,271C.
Hindustan Lever Ltd. , CIT v/s.
(2008) 306 ITR 25(Guj)
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266
(2) Interest/Penalty – Validity –(a) Constitutionality ‐ Levy of penal
interest and show cause notice for penalty not mentioned in draft
order under s. 144B ‐ AO could not levy penal interest or issue show
cause notice for imposition of penalty while passing final order as
there was no mention about the same in the draft order under.
Maharaja Exhibitors, CIT v/s.
(2001)170 CTR 107 = 251 ITR 767=(2002) 125 Taxman 278 (GUJ)
(f) FAILURE TO FILE RETURN
(1) Belated filing of return under s. 139(4) – Assessee having filed the
returns under s. 139(4) beyond the extended period allowed to him,
penalty under s. 271(1)(a) was leviable notwithstanding charge of
interest.
Amin Chand Payarelal v/s. IAC & Ors.
(2006) 204 CTR 585 = 285 ITR 546 = 155 Taxman 633=
(2007) 196 Taxation 383 (SC)
(2) Meaning of “month “ in section 271(1)(a) – Month means
calendar month – Income Tax Act, 1961, s. 271(1)(a) – General
Clauses Act, 1897, s. 3(35).
S.L.M Maneklal Industries Ltd., CIT v/s.
(2005) 274 ITR 485 = 196 CTR 526= 187 Taxation 584 (Guj)
(3) Levy of penalty is discretionary – Duty of Assessing Officer to
consider explanation regarding delay – Failure to consider
explanation – Levy of penalty not valid – Income Tax Act,
1961, s. 271(1)(a).
Scientific Chemicals , CIT v/s.
(2005) 278 ITR 199 = 198 CTR 665 (Guj)
(4) Opportunity of being heard – Non consideration of reply to show
cause notices –
Concurrent findings of fact recorded by both the appellate
authorities that the ITO had completed the penalty proceedings
without waiting for the reply to the show cause notices issued by him
– Tribunal justified in deleting the penalty.
Textile & General Engineering Co., CIT v/s.
(2002) 178 CTR 539 (Guj)
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267
(g) FAILURE TO GET A/C. AUDITED
s. 271B ‐Assessee firm filed return of income after a survey under
section 133A – Assessing Officer levied penalty under section 271B
for all years as books of account were not audited – Appellate
authority confirmed penalty for first assessment year, i.e 1985‐86,
but set aside levy of penalty for subsequent years – Whether it
could be said that assessee could not comply with provisions for
subsequent years because there was no audit for preceding year
and as such no penalty could be imposed on assessee for
subsequent years – Held, yes.
Tea King, CIT v/s.
(2002) 123 Taxman 162(Guj)
(h) FALSE ESTIMATE OF ADVANCE TAX
(1) Penalty under s. 273(2)(a) ‐ Bona fide belief regarding accrual
of income – Assessee having passed a resolution postponing
the date of charging contractual interest on the deferred
purchase consideration of its business undertaking and
accordingly filed a ‘nil’ estimate of advance tax , entertained a
reasonable belief that no interest had accrued to it, hence
penalty under s. 273(2)(a) was not attracted.
Sarabhai Holdings (P) Ltd., CIT v/s.
(2008) 219 CTR 644 = 307 ITR 89 = 175 Taxman 82 = 11 RC 593
= 14 DTR 137 = (2009) 208 Taxation 351(SC)
(2) Penalty under s. 273 – False estimate of Advance Tax ‐ Condition
precedent – False estimate of advance tax – For invoking penal
provisions, Revenue has to establish that the assessee, when it filed a
particular estimate knew or had reason to believe that it was not
genuine and was spurious – Assessee submitting the estimates only
on the basis of budgeted financial date, believing it to be correct –
No case for imposition of penalty under s. 273 made out.
S. G Chemicals & Pharmaceuticals Ltd., CIT v/s
(2003)179 CTR 605 = 173 Taxation 527 = 261 ITR 432 (Guj)
(3) Untrue estimate of advance tax – Bona fide belief as to non‐
applicability of s. 37(3A) – Tribunal found that the belief of the
assessee that its case was governed by the provision of s. 37(3D)
and not s.37(3A) was a bona fide belief as it was supported by the
assessment order of the immediately preceding year ‐ Merely
because the assessee was assessed at a higher figure subsequently
is not sufficient to hold that the estimate filed by it was untrue ‐
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268
Assessee can be penalized only if it knew or had reasons to
believe that the estimate of advance tax is untrue – Tribunal right
in canceling the penalty.
Kismet (P) Ltd., CIT v/s.
(2003) 184 CTR 613 = 264 ITR 496 = 177 Taxation 714 =
(2004) 136 Taxman 198 (Guj)
(i) FOR LOSS RETURN
Concealment or furnishing inaccurate particulars – Provisions
prior to amendment by Finance Act, 2002 – Where loss is
returned and assessment made at reduced loss after adding
amount sought to be evaded – Penalty not leviable ‐
Virtual Soft Systems Ltd. v/s. CIT
(2007) 289 ITR ITR 83=207 CTR 733 =159 Taxman 155=
8 RC 429 =199 = 199 Taxation 423 (SC)
(j) LATE FILING OF RETURN
(1) Meaning of “month” in section 271(1)(a) – Month means
calendar month – Income Tax Act, 1961, s. 271(1)(a) – General
Clauses Act, 1897, s. 3(35).
L.M Maneklal Industries Ltd., CIT v/s.
(2005) 274 ITR 485 (Guj)
(2) Treatment of RF and URF – No tax payable – Tribunal was not
justified in holding that merely because on completion of assessment
of the assessee in status of a registered firm a refund was due to
assessment no penalty was leviable.
Textile & General Engineering Co., CIT v/s.
(2002) 178 CTR 539 = (2003)259 ITR 735 (Guj)
(3) Treatment of RF as URF – Advance tax paid in excess of assessed tax
‐ It could not be held that penalty under s. 271(1)(a) could not be
levied against the assessee firm merely because the advance tax
paid by the firm exceeded the assessed tax payable by it and the
assessment resulted in refund ‐ Tribunal directed to decide as to
whether assessee was prevented by reasonable cause from filing
the return in time after giving necessary opportunity of hearing to
the parties.
Natverlal Jivanlal, CIT v/s.
(2002) 178 CTR 542 (Guj)
&
Dipak Construction Co., CIT v/s.
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269
(2002) 178 CTR 544 = 171 Taxation 661 = 125 Taxman 252 (Guj)
(k) MENS REA
(1) Under s. 11AC of Central Excise Act ‐ Judgment in the case
of Dilip N. Shroff vs. Jt. CIT (2007) 210 CTR (SC) 228 : 2007 (8)
SCALE 304 is recommended for consideration by a larger bench
particularly as it has ramification not only regarding the
provisions of IT Act but also with regard to provisions of ss. 3A
and 11AC of the Central Excise Act and r. 96ZQ(5) of Central
Excise Rules.
Central Excise Act, 1944–Penalty – For short levy of duty in
certain cases ‐Whether section 11AC, inserted by the Finance
Act, 1996 with intention of imposing mandatory penalty on
persons who evade payment of tax, can be read to contain
mens rea as an essential ingredient and there is scope for
levying penalty below prescribed minimum limit – Held, no
Dharmendra Textile Processors, Union of India v/s
(2008) 212 CTR 432 = 295 ITR 244 (SC)
(2) Excise Duty ‐ Penalty ‐ For short levy or non‐levy – Mens rea
not essential for attracting civil liability of penalty – Central
Excise Act, 1944, s. 11AC – Central Excise Rules, 1944, rr. 96ZQ
–
Penalty ‐ For concealing or giving inaccurate particulars – Wilful
concealment not essential for attracting civil liability of penalty –
Income tax Act, 1961, ss. 271(1I, 276C.
Dharmendra Textile Processors, Union of India v/s
(2008) 306 ITR 277 = 219 CTR 617 = 166 Taxman 65 = 204 Taxation
381(SC)
(3) Strict liability – Exclusion of mens rea.
Guljag Industries v/s. Commercial Taxes Officer
(2007)293 ITR 584(SC)
70. PERQUISITES
(1) Section 17(2) of the Income Tax Act, 1961, read with rule 3 of the
Income Tax Rules, 1962 – Salaries – Perquisites – Assessee were
employees of company which provided them with accommodation –
Rule 3 is amended revising method of computing valuation of
perquisites in matter of rental accommodation provided by
employers to their employees – Assessees challenged validity of
amended rule 3 on ground that amended rule does not provide for
giving opportunity to assessees to convince Assessing Officer that
no concession is given by employer to employee in respect of
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270
accommodation provided and, hence, rule 3/section 17(2)(ii) has no
application – Rule 3, as amended by Central Board of Direct Taxes is
not arbitrary, discriminatory or ultra vires Art. 14 of the
Constitution nor inconsistent with provisions of section 17(2)(ii), it
is in nature of “machinery‐provision” and applies only to cases of
‘concession’ in matter of rent respecting any accommodation
provided by an employer to his employees‐ Inspite of legal position
that rule 3 intra vires, valid and is not inconsistent with provisions of
parent Act under section 17(2)(ii) it is open to an assessee employee
to contend that there is no concession in matter of
accommodation provided by employer to employees and case is
not covered by section 17(2)(ii) ‐ Rule 3 can’t be said to be arbitrary,
discriminatory, unreasonable and violative of articles 14, 16 and 19
of Constitutional on ground that it gives different treatment to
employees of Government and employees of Public Sector
Undertakings.
Arun Kumar v/s. Union of India
(2006) 155 Taxman 659 = 286 ITR 89 = 205 CTR 193=
(2007) 196 Taxation 353 (SC)
(2) Residential accommodation provided by employer ‐ Rule prescribing
computation of value ‐ Mandatory ‐ Applies equally to
accommodation owned by employer or only taken on lease ‐ Actual
rent paid by employer not to be taken as value of perquisite ‐
Sundaram (K.S) v/s. CIT
(2001) 251 ITR 781 = 170 CTR 557(SC)
71. PRACTICE
(1) Judicial propriety ‐ Quoting from a specialized authority –
Should be acknowledged as a matter of courtesy.
Kalyanasundaram (P.V), CIT v/s.
(2007) 294 ITR 49 = 212 CTR 97 =164 Taxman 78 = 9 RC 577=
(2008) 202 Taxation 206 (SC)
(2) Clearance from high powered committee – A dispute arose between
appellant – MTNL and respondent and matter was referred to high
powered committee – Committee having regard to fact that
appellant was contemplating writ petition against a show cause
notice, advised appellant to await appealable order and,
accordingly it did not permit appellant to file writ petition in High
Court – However, appellant fited writ petition and High Court
passed order on merits – High powered committee has been set up
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271
not only to conciliate between government departments but also
for purposes of ensuring that frivolous disputes do not come
before courts without clearance from such a committee –Even if
department/public sector undertaking finds the decision of
Committee unpalatable, discipline requires that they abide by it –
Since decision of high powered committee merely emphasized well
settled position that against a show cause notice, litigation should
not be encouraged, it was an eminently fair and correct decision
and no right of appellant was being affected – Therefore, in
absence of clearance, proceedings could not be proceeded with by
appellant and High Court was wrong in dealing with merits of
matter.
Mahanagar Telephone Nigam Ltd. v/s Chairman,
Central Board, Direct Taxes
(2003) 137 Taxman 242=267 ITR 647=189 CTR 97 =
181 Taxation 394 (SC)
72. PRECEDENTS
(1) High Court – Decision of jurisdictional High Court between same
parties – Binding on Department .
Mrunalinidevi Puar of Dhar , CIT v/s.
(2008) 305 ITR 263= 3 DTR 273 =13 DTR 274 (Guj)
(2) Predominant view of High Courts – Supreme Court leans in favour.
Synco Industries Ltd. V/s. Assessing Officer(Income Tax)
(2008)299 ITR 444 =215 CTR 385= 168 Taxman 224 =4 DTR 203 (SC)
(3) Judicial discipline ‐ Lower authority bound by order passed by higher
authority.
Ralson Industries Ltd., CIT v/s.
(2007) 288 ITR 322 = 207 CTR 201=158 Taxman 160 =
198 Taxation 97 (SC)
(4) Supreme Court – View of predominant majority of High Courts
– Supreme Court will lean on –
Virtual Soft Systems Ltd. v/s. CIT
(2007) 290 ITR 83=207 CTR 733 =159 Taxman 155=8 RC 429=
199 Taxation 423 (SC)
(5) Effect of decision of the Supreme Court in Asst. CIT v/s. J.K
Synthetics Ltd. (2001) 251 ITR 200 ‐
Gujarat State Co‐op. Marketing Federation Ltd. CIT v/s.
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272
(2007) 290 ITR 160 = 196 Taxation 189(Guj)
(6) Binding nature – It is open to a Court of superior jurisdiction or
strength before which a decision of a Bench of lower strength
is cited as an authority, to overrule it – This overruling would
not operate to upset the binding nature of the decision on
the parties to an earlier lis for whom the principle of res
judicata would continue to operate – However, in tax cases
relating to a subsequent year involving the same issue as in
earlier year, the Court can differ from the earlier view if the
case is distinguishable or per incuriam – Here also,
subsequent Bench of superior strength can declare that the
earlier decision does not represent the law, if it so finds, and
the doctrine of res judicata would not apply.
Bharat Sanchar Nigam Ltd. & Anr. V/s. Union of India & Ors.
&
General Manager,BSNL, Asstt. Commr. Trade Tax, Asstt,
Commr. Trade Tax & Ors v/s.
(2006)201 CTR 346 = 152 Taxman 135= 282 ITR 273 (SC)
(7) Effect of decisions of Supreme Court in CIT v/s. Anjuman M.H
Ghaswala (2001) 252 ITR 1 and CIT v/s. Hindustan Bulk Carriers
(2003) 259 ITR 449.
AOP Sanjaybhai R. Patel v/s. Assessing Officer/Asst. CIT
(2004)267 ITR 129(Guj)
(8) Binding nature – Observations vis‐à‐vis factual situation ‐ Courts
should not place reliance on decisions without discussing as to how
the factual situation fits in with the fact situation of the decision on
which reliance is placed – Observations in a judgment must be read
in the context in which they appear – Each case depends on its
own facts and a close similarity between one case and another is
not enough to place reliance on the other case because even a
single significant detail may alter the entire aspect.
Vinay Extraction (P) Ltd. v/s. Vijay Khanna , CIT
(2004) 190 CTR 495 = 140 Taxman 67 = 271 ITR 450=
(2005) 142 Taxation 315 (Guj)
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273
(9) Earlier vis‐à‐vis subsequent decision – If the views of the Supreme
Court expressed in an earlier decision are explained in a subsequent
decision of the Supreme Court, the explanation in the subsequent
decision will have to be followed by the High Court, even if the
subsequent decision is rendered by a smaller Bench of the Supreme
Court.
Arunbhai Hargovandas Patel, CGT v/s.
(2003) 179 CTR 420 =173 Taxation 182(Guj)
(10) Binding nature – Jurisdictional High Court decision – Is binding on
the Revenue authorities within the State – Revenue authorities
within the State cannot refuse to follow the jurisdictional High
Court’s decision on the ground that the decision of some other High
Court was pending disposal before the Supreme Court.
G.M Mittal Stainless Steel (P) Ltd., CIT v/s.
(2003) 179 CTR 553 = 263 ITR 255 = 130 Taxman 67(SC)
(11) Decision enunciating principle ‐ Normally law from inception ‐
Prospective overruling ‐ Device innovated to avoid reopening of
closed issues – No prospective overruling unless so specified by
Supreme Court.
Murthy (M.A) v/s. State of Karnataka
(2003) 264 ITR 1 = 185 CTR 194 =(2004) 178 Taxation 397 (SC)
(12) Decision made on setting of facts of particular case–Reliance on
earlier decision to be based on fitting factual situation.
Padmasundara Rao (Decd) v/s. State of Tamil Nadu
(2002) 255 ITR 147 = 176 CTR 104 = 170 Taxation 303 (SC)
(13) Doctrine of Prospective Overruling ‐ Implications ‐ Prospective
overruling is a recognition of the principle that the Courts can
mould the reliefs claimed to meet the justice, not in its logical sense
but in its equitable sense ‐ In exercise of this power Courts deny the
relief claimed despite holding in the claimant's favour in order to do
complete justice ‐ By its judgment in Synthetics & Chemicals Ltd.
v/s. State of U.P (1990) 1 SCC 109, the Supreme Court overruled
its earlier judgment and declared the provisions for levy of vend
fee on industrial alcohol by the States illegal prospectively ‐ This
meant that if the States had already collected the tax they are not
liable to refund the same ‐ At the same time States were
restrained from enforcing the levy any further ‐ States were also
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274
prevented to recover the tax if not already realised in respect of
period prior to date of judgment i.e 25th Oct., 1989 ‐ Such an order
of prospective overruling is not contrary to law ‐ Court did not, by
denying the relief, authorise or validate what had been declared to
be illegal or void.
Somaiya Organics (India) Ltd. & Anr. v/s. State of Uttar Pradesh &
Anr.
(2001) 170 CTR 81 (SC)
73. PRIMA FACIE ‐ ADJUSTMENT UNDER 143(1)(a)
(1) Section 143(1)(a) – Tribunal is right that adjustment was not
permissible as the issue of the deduction was debatable ‐ High
Court held there is no infirmity in Tribunal’s order – Reference
answered against the revenue. Income Tax Act, 1961 – Section
143(1)(a).
Mahesh Kumar A. Rathod, CIT v/s.
(2007)198 Taxation 173 (2008) 296 ITR 146 =
(2009) 176 Taxman 283 (Guj)
(2) Development Officer of LIC – Incentive bonus adjusted –
Tribunal held being a debatable issue no adjustment is
permissible – High Court confirms Tribunal’s order – Revenue’s
appeal dismissed. Income‐tax Act, 1961 – Section 143(1)(a).
Manubhai M. Patel, CIT v/s.
(2007)199 Taxation 491 = (2008)296 ITR 143 (Guj)
(3) Section 143(1)(a) – Whether Tribunal is right that adjustment was
not permissible as the issue of the deduction was debatable ? – High
Court held there is no infirmity in Tribunal’s order – Reference
answered against the revenue, Income –tax Act, 1961.
Mahesh Kumar A. Rathod, CIT v/s.
(2007)198 Taxation 173= (2008) 296 ITR 146 =
(2009) 176 Taxman 283 (Guj)
(4) Debatable issue – There being conflicting views at the relevant time
on the question whether deduction under s. 80‐O is allowable on
gross income or net income, deduction under s. 80‐O claimed by the
assessee on gross qualifying income could not be reduced by way
of prima facie adjustment under s. 143(1)(a) and consequently
additional tax under s. 143(1A) could not be charged.
Kraverner John Brown Engg. (India) (P) Ltd. V/s. Asstt. CIT & Ors.
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275
(2008)216 CTR 193 = 170 Taxman 304 = 305 ITR 103 = 207 Taxation
637 = 6 DTR 289 (SC)
(5) s.143(1)(a) – Assessment ‐ Computation of book profit under s.
115J ‐ Amount of unabsorbed depreciation and unabsorbed
investment allowance to the extent considered for working out
book profits for the purposes of s. 115J for earlier assessment
years, namely asst. yr. 1988‐89 and 1989‐90 cannot be treated
to be prima facie inadmissible on the basis of the information
available in the return, accounts or documents accompanying
the return for asst. yrs. 1990‐91 and 1991‐92 more so when
the issue was highly debatable.
Gujarat Petrosynthese Ltd. & Anr. V/s. P.L Rungta & Ors.
(2008) 220 CTR 584 = 14 DTR 272(Guj)
Also see under the heading “Assessment”.
74. PROCEDURE
(1) Litigation between P.S.U & Govt. ‐ Public sector undertakings –
Litigation – Ruling of Supreme Court ‐ Necessity for obtaining
clearance of High Powered Committee within one month of
institution – Scope of rule – Not a rigid time framework – One
month was used to indicate urgency – Mere existence of some
delay in applying for clearance – Does not make action illegal.
Oriental Insurance Co. Ltd. , CIT v/s.
(2008) 304 ITR 55 = 11 RC 236 = 172 Taxman 92 = 217 CTR 593=
206 Taxation 537(SC)
(2) Mode of proof – Common law principle applicable.
Chinnnathamban K., CIT v/s.
(2007)292 ITR 682 = 211 CTR 86 = 162 Taxman 459=
201 Taxation 157 (SC)
(3) Practice ‐ Supreme Court – Dismissal of petition for special
leave to appeal from decision of one High Court – Department
not appealing from decisions of other High Courts taking same
view – Not allowed to appeal from decision taking same view –
Constitution of India, art.136.
Mandideep Eng. & Pkg. Ind. (P) Ltd., Jt. CIT v/s.
(2007)292 ITR 1=210 CTR 614 =163 Taxman 337 =201 Taxation
388 (SC)
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276
75. PREVIOUS YEAR
(1) Assessing Officer permitting change of previous year subject to
condition that depreciation would not be allowed for period of five
months, i.e for assessment year 1982‐83 and that full depreciation
would be allowed for assessment year 1983‐84 – Assessee cannot be
deprived of the benefit given to it under statute – That assessee
did not challenge validity of order at initial stage would not deprive
the assessee of its right to claim depreciation ‐ Income Tax Act,
1961, ss. 3, 32.
Electric Control Gear Ltd., CIT v/s.
(2004)266 ITR 338 = (2003) 129 Taxman 722 = 183 CTR 540 =
176 Taxation 539(Guj)
(2) Change of ‐ Section 3, read with section 10(3), [prior to its
amendment by the Finance Act, 1972 with effect from 1‐4‐1972] of
the Income Tax Act ‐Previous Year – Assessee adopting previous year
ending 30th June for business receipts, received jackpot winning
during 1‐9‐1971 to 15‐2‐1972 and credited it in same account in
which business receipts were credited – Whether previous year for
impugned receipts would be year ending 30‐6‐1972 and same
would be taxable during assessment year 1973‐74 subject to
exemption only of Rs. 1,000 under amended section 10(3) – Held,
no – Whether impugned receipts would, thus, be assessable in the
assessment year 1972‐73 – Held, yes.
Lachman Das Veerbhandas, CIT v/s.
(2002) 124 Taxman 488(SC)
76. PRIORITY INDUSTRY – MANUFACTURE
(1) Deduction under s. 80J ‐ Manufacture or production ‐ Bleaching,
dyeing printing etc. of grey cloth ‐ Produces a distinct article having
distinct use ‐ There is manufacture or production of article ‐ Relief
under s. 80J allowable ‐
Kashiram Textile Mills (P) Ltd. , CIT v/s.
(2001) 170 CTR 11 = 252 ITR 162(GUJ)
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277
(2) Deductions ‐ Profits and gains from new industrial undertakings, etc.
Assessee, a new industrial unit, did not claim relief under section
80J in earlier years as there was no positive taxable income and
claimed relief in assessment years 1978‐79 and 1979‐80 when
there was profit ‐ Whether assessee was entitled to carry forward
claim of relief under section 80J relevant to years when assessee
suffered loss and got relief in year in which assessee had profits ‐
Held, yes.
Gujarat Agro Oil Enterprises, CIT v/s.
(2001) 118 TAXMAN 150 (GUJ)
Also see “80I, “New Industrial undertaking”.
77. PROMISSORY ESTOPPEL ‐ SALES TAX
(1) Abolition of purchase tax on milk – Chief Minister had announced
that purchase tax on milk had been abolished – This was repeated
by the Finance Minister in his budget speech after considering the
financial implications of the grant of exemption – Circulars to that
effect also issued by Sales tax authorities ‐ State Government had
the power to exempt milk as a taxable commodity – Representation
to exempt milk was made by persons who had the power to
implement the representation – Appellants have been unable to
establish any overriding public interest which would make it
inequitable to enforce the estoppel against the State Government ‐
Thus, the plea of promissory estoppel raised by the respondents
is upheld and the State Government cannot now be allowed to
resile from its decision to exempt milk and demand purchase tax
with retrospective effect.
Nestle India Ltd. , State of Punjab v/s.
(2004) 189 CTR 501 = 269 ITR 97= (2005) 184 Taxation 1 (SC)
(2) Discontinuance of purchase tax exemption ‐ Rule of promissory
estoppel can be invoked only if, on the basis of the representation
made by the Government, an industry was established to avail of
the benefit of tax exemption – Doctrine of legitimate expectation is
confined mostly to right of a fair hearing before a decision which
results in negativing a promise or withdrawing an undertaking is
taken – Protection of such legitimate expectation does not require
the fulfillment of the expectation where an overriding public interest
requires otherwise – Basic requirement of Art. 14 is fairness in
action by the State – Every State action must be informed by reason
– An act uninformed by reason is, per se, arbitrary ‐ However, a
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278
claim based on mere legitimate expectation without anything more
cannot ipso facto, give a right to invoke Art. 14 ‐ Reasonableness
of the legitimate expectation has to be determined with respect to
the circumstances relating to the trade or business in question –
White taking a policy decision, the Government is not required to
hear the persons who have been granted the benefit which is
sought to be withdrawn – Though the appellants were not entitled
to any opportunity of hearing before alternation or withdrawal of
any benefit, State having not taken any specific stand justifying the
withdrawal, principles of natural justice were applicable – High
Court has recorded its findings simply on the basis of files –
Further, High Court has not dealt with the issue of legality of
retrospective withdrawal of benefit by an executive order – Thus,
matter is remitted to the High Court for fresh consideration.
Bannari Amman sugars Ltd. v/s. CTO & Ors.
(2004) 192 CTR 492 = (2005) 186 Taxation 163 (SC)
78. PROPERTY INCOME
(1) Where there is no fixation of standard rent by any competent Court
under Rent Control Legislation annual letting value has to be
determined on basis of actual rent received by assessee and not on
basis of gross rental value determined by Small Causes Court for
municipal tax purpose.
Sarabhai (P) Ltd., CIT v/s.
(2009) 176 Taxman 6(Guj)
(2) Ownership – Property subject to dispute between the parties
– Assessee was not in a position to exercise its right as owner
of the property purchased buy it during the years under
consideration on account of suits filed by the original owner
and his relatives against the assessee – Income from said
property rightly excluded from assessee’s assessment.
Gaekwad and Co., CIT v/s.
(2006) 202 CTR 166 = 284 ITR 382 (Guj)
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279
(3) Owner ‐ Person purchasing property but not obtaining
possession thereof ‐ Not the owner for purposes of Income
Tax Act – Income from property not includible in its total
income – Income Tax Act, 1961, s. 22.
Gaekwad and Co., CIT v/s.
(2005)277 ITR 553 = 198 CTR 258 =189 Taxation 741 (Guj)
(4) Income from house property – Ownership – Transfer of properties –
Income from house properties which had been transferred could not
be brought to tax on notional basis.
Fabriquip (P) Ltd., CIT v/s.
(2002) 177 CTR 149 = 123 Taxman 820 = 171 Taxation 291 (Guj)
79. REASSESSMENT
(a) AGAINST INTIMATION U/S. 143(1)(a)
Reassessment – Validity ‐ Assessment under s. 143(1) – Under s.
147, as substituted w.e.f 1 st April, 1989, if the AO, for whatever
reason, has reason to believe that income has escaped
assessment, it confers jurisdiction to reopen the assessment
where the case is not covered by proviso to s. 143 – Intimation
under s. 143(1)(a) cannot be treated to be an order of
assessment and there being no assessment under s. 143(1)(a),
the question of change of opinion does not arise.
Rajesh Jhaveri Stock Brokers (P) Ltd., Asstt. CIT v/s.
(2007) 210 CTR 30 = 291 ITR 500 = 161 Taxman 316 =
201 Taxation 184 (SC)
(b) AUDIT REPORT
(1) Income escaping assessment ‐ Position prior to 1‐4‐1989 –
Assessment year 1988‐89 – When Assessing Officer became aware of
jurisdictional High Court’s decision, he initiated reassessment
proceedings under section 147 and issued notice under section 148
‐ Whether since Assessing Officer acted on basis of information,
which he received, initiation reassessment proceeding would be
upheld – Held, yes.
Saradbhai M. Lakhani, ITO v/s.
(2002) 122 Taxman 111(SC)
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280
(2) Issue of notice for – Assessment year 1989‐90 – Assessment Officer
issued Impugned notice under section 148 on ground that income
had escaped assessment ‐ Reasons recorded was that certain items
could not be considered while working out book profit under section
115J – High Court quashed notice as it thought that necessary
condition for issuing notice under section 148 read with section 147
had not been satisfied ‐ Whether, since both parties, before Supreme
Court agreed that judgment and order of High Court should be set
aside and that matter should be considered by Assessing Officer,
order of High Court was to be set aside and matter should be
remanded back to Assessing Officer – Held, yes.
VXL India Ltd., Asstt. CIT v/s.
(2002) 124 Taxman 494 (SC)
(3) Failure to disclose material facts necessary for assessment ‐
Information that income has escaped assessment ‐ Firm ‐ Shares
transferred as contribution to capital ‐ Fact disclosed to
Assessing Officer ‐ Opinion of audit party that transaction would
attract capital gains tax ‐ Opinion of audit party would not
amount to information within the meaning of section 147(b) ‐
Reassessment not valid ‐ Income Tax Act, 1961, s. 147.
Pankajkumar R. Shah, CIT v/s.
(2001) 252 ITR 434 = 171 CTR 421 = 165 TAXATION 749(GUJ)
(c) AUTHORISATION
Notice ‐ Firm – Genuineness of transactions – Finding that
entries not genuine – Power of Assessing Officer to take action
even against partner in view of statements made by witness –
Income Tax Act, 1961, s. 147(a) ‐
Gujarat Fertilizers v/s. CIT
(2007) 293 ITR 70 =196 Taxation 187 =210 CTR 594(Guj)
(d) CHANGE OF OPINION
(1) Reason to believe ‐ Income had escaped assessment ‐ Finding
that allowances were not properly computed – Reassessment
proceedings – Valid – Income Tax Act, 1961, s. 147.
Revision – Notice issued under section 263 – Reassessment
proceedings can be initiated – Income Tax Act, 1961, ss. 147,
263.
Inductotherm (India) (P) Ltd. v/s.James Kurian, Asstt. CIT .
(2007)294 ITR 341 =212 CTR 195=(2008) 169 Taxman 240 (Guj)
280
281
(2) Different view on same facts – Reopening of assessment on the basis
of finding of another AO in a later assessment year suffered from
change of opinion, hence invalid.Full and true disclosure ‐ Notice
after expiry of four years – Assessments for the relevant assessment
years having been framed following orders of CIT(A) in earlier years
holding assessee eligible for deduction under ss. 80HH and 80‐I and
there being no failure on the part of assessee to make full and true
disclosure, reopening of assessments after the expiry of four years
from the end of the relevant assessment years was invalid.
Notice under s. 148 ‐ Validity – Notice under s. 148(1) issued by AO
other than the one who recorded reason to believe under s. 148(2)
is invalid.
Hynoup Food & Oil Industries Ltd. v/s. Asstt. CIT
(2008) 219 CTR 124 = 307 ITR 115 = 207 Taxation 461 = 175
Taxman 331 (Guj)
(3) Notice under s. 148 ‐ Block assessment ‐ Framed under Chapter XIV‐
B – Once assessment has been framed under s. 158BA in relation to
undisclosed income of the block period as a result of search, AO
cannot issue notice under s. 148 for reopening such assessment.
Cargo Clearing Agency v/s Jt. CIT
Kapurchand Kakaram Bansal v/s. Dy. CIT
(2008)217 CTR 541= 307 ITR 1 =207 Taxation 586= 12 DTR 50=
12 DTR 50 (Guj)
13 FULL DISCLOSURE
(1) Notice after expiry of four years – Reopening after four years on the
ground that as per TDS certificate the work done is shown at Rs.
20,51,903 while in the return of income the work done is shown at
Rs. 1,98,800 is not permissible as TDS certificate is not concerned
with work done – There was no failure or omission on the part of
the assessee to disclose truly and fully all relevant particulars of
income.
Ganesh Valabhai Family Trust v/s. DCIT
(2008)217 CTR 588 =205 Taxation 292 =306 ITR 221=5 DTR 317 (Guj)
(2) No non disclosure ‐ Notice – Incorrect opinion formed by Assessing
Officer – No non‐disclosure of material facts for assessment by
assessee – Notice issued after four years – Not valid – Income tax
Act, 1961, ss. 147, 148.
Gujarat Carbon and Industrial Ltd. v/s. Jt. CIT
(2008) 307 ITR 271 = 218 CTR 537=207 Taxation 138 =
281
282
11 RC 373 = 11 DTR 329(Guj)
(3) Assessment reopened for A.Y 1992‐93 on the ground that the
insurance claim of Rs. 322160 in respect of loss of stock due to
fire as assessed by the surveyor was not shown as accrued
income as assessee was maintaining accounts on mercantile
basis – High Court found that the insurance company did not
settle the claim – Matter taken up before the consumer
disputes redressal commission which settled the claim in next
year – Assessee along with return furnished above information
– Held, there was no failure to disclose fully & truly all
material facts – Notice under section 148 quashed & set aside .
(Reopening of assessment after four years ‐ Disclosure of
material facts – Notice under section 148.
Prahladbhai Naranbhai Patel v/s. NKC Nair
(2008) 207 Taxation 581 == 10 DTR 57= (2009) 309 ITR 45 (Guj)
(4) Full and true disclosure – Notice under s. 148 – Reason to believe
– An omission on the part of assessee for asst. yr. 1997‐98
even if taken to be true, cannot be a ground for reopening the
assessment for asst. yr. 1996‐97 in the absence of any
independent reason of AO to believe that income chargeable
to tax for asst.yr. 1996‐97 escaped assessment on account of
such omission – Nor also a belief of “possible escapement of
income” can give the AO jurisdiction to reopen assessment.
Nitin P. Shah alias Modi v/s. Dy. CIT
(2005)194 CTR 306 =276 ITR 411= 146 Taxman 536 = 187
Taxation 390 (Guj)
(5) Full and true disclosure – Discovery of information vis‐à‐vis
undisclosed investment ‐ A diary seized from assessee
revealed that a larger amount was paid towards purchase of
a property than that shown in the books f account – Noting in
the diary constituted sufficient information for the assessing
authority to form a prima facie opinion that there was
escapement of income on account of non declaration of
correct price of the property – Thus, there was failure to
disclose fully and truly all material facts.
Ramilaben Ratilal Shah v/s. CIT
(2005)199 CTR 340= (2006) 152 Taxman 37=
192 Taxation 351 (Guj)
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283
(6) Retrospective amendment of law ‐ Petitioner had claimed
depreciation and investment allowance on the assets which included
capitalized interest paid in connection with the acquisition of
machinery for the post installation period ‐ When the assessee had
filed its return for the asst. yr. 1983‐84 in 1983 it could not have
assumed that a legislative amendment by way of Expln. 8 to s. 43(1)
was going to be made in the year 1986 with retrospective effect
from the year 1974 – Thus, it could not be said that the petitioner
had failed to disclose all the material facts and hence the condition
precedent for invocation of powers under s. 147 r/w ss. 148 and
149 was not fulfilled – Impugned notice quashed and set aside.
Denish Industries Ltd. v/s. ITO
(2004) 190 CTR 485 140 Taxman 456= 271 ITR 340 =
(2005) 184 Taxation 308 (Guj)
(7) Notice after expiry of four years ‐ There was no failure or omission
on the part of the assessee either to make a return or to disclose
any material fact necessary for the purpose of assessment ‐
Assessee fulfilled all the conditions laid down in sub‐s. (1) of s. 32A
and investment allowance was accordingly allowed – Thus, the
reassessment proceedings for the asst. yrs. 1982‐83 to 1985‐86 are
bad in law ‐ As regards asst. yr. 1986‐87, though the notice was
issued within the period of four years, not only there was no
omission or failure on the part of assessee, there is no material with
the AO to come to the conclusion that any income had escaped
assessment – Assessee has been granted investment allowance on
same set of facts in the succeeding assessment year – Reopening of
assessment is not permissible on a change of opinion.
Vikas Printery v/s. Asstt. CIT(Inv.) & Anr.
(2004) 190 CTR 608 = 270 ITR 68 = 183 Taxation 403 =
(2005) 142 Taxman 317 (Guj)
(8) Notice – Notice after four years ‐ Condition precedent ‐ Failure to
disclose aterial facts necessary for assessment – Finding that fact
relating to special deduction under section 80HHC were disclosed ‐
Notice of reassessment after four years ‐ Not valid .
Patidar Oil Cake Industries v/s. Deputy CIT
(2004)270 ITR 347 =140 Taxman 575=(2005)184 Taxation 305( (Guj)
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284
14 GENERAL
(1) Income escaping assessment ‐ Issue of notice for – Return filed by
petitioner/assessee was processed by Assessing Officer under section
143(1)(a) without making any prima facie adjustment and an
intimation to that effect was issued – Thereafter, Assessing Officer
noticed that assessee had made a note in return that he had received
non compete fee from a company, which being a capital nature was
not taxable, but there was no formation of any opinion with regard
to that fee being taxable or non‐taxable in assessment order passed
– Assessing Officer being of view that amount of non‐complete fees
was taxable and same ought to have been included in total income
of assessee, issued impugned notice for re‐assessment under section
148 believing that income of assessee had escaped assessment
within meaning of provisions of section 147 – In liberalized and
simplified tax‐collection regime, mere acceptance and
acknowledgement of return and issuance of refund cannot be
elevated to status of regular assessment and formation of opinion
about incident of tax on a particular claim or item mentioned in
return of income, and in absence of any formation of opinion about
taxability of non‐compete fees, in facts of instant case, there could
be no question of change of opinion –
In view clause ( c) of Explanation 2 to section 147 even where an
assessment is made, but income chargeable to tax has been under
assessed – Impugned notice issued by Assessing Officer proposing to
re‐assess income of petitioner was legal and valid .
Bharat V. Patel v/s. Union of India
(2004)134 Taxman 178 = 186 CTR 639 = 179 Taxation 498 =268 ITR
116 (Guj)
(2) Accrual of Income – Concept of real income – Mercantile system of
accounting ‐ Transfer of business by assessee company to its wholly
owned subsidiary on 28‐2‐1977 – Agreement providing for payment
of interest on unpaid purchase price ‐ Resolution by assessee on
30‐6‐1978 shifting date of charge of interest to 1‐8‐1979 – Reason
for not charging interest stated to be that it was obtaining security –
No security obtained ‐ No commercial reason for forgoing interest –
Interest had accrued from 1‐7‐1977 to 30‐6‐1978 hence was
taxable ‐ Resolution found to be genuine – No interest accrued from
1‐7‐1978 to 30‐6‐1979 hence not taxable.
Sarabhai Chemicals Pvt. Ltd. , CIT v/s.
(2002) 257 ITR 355 = 173 CTR 193 = 121 Taxman 755 (Guj)
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285
(3) Effect – Original assessment ‐ On reassessment original assessment
order stood effaced by reassessment order ‐ Said assessment
order made a fresh assessment of entire income of the assessee ‐ In
that view of the matter, the question as to dissenting views being
expressed by different Benches of the Supreme Court on the scope
and effect of re‐opening of assessment need not be decided and is
left open.
K.L Srihari (HUF) & Ors , ITO & Ors. v/s.
(2002) 176 CTR 99 = 250 ITR 193 = 118 Taxman 890(SC)
(4) Notice ‐ Reassessment on the ground that return for 1991‐92 had
not been filed and that a certain income had not been disclosed –
Material on record showing that return had in fact been filed –
Revenue not sure whether alleged income was taxable in
assessment year 1991‐92 or 1992‐93 – Reassessment proceedings
for 1991‐092 not valid – s. 147.
Sagar Enterprises v/s. Asstt. CIT
(2002)257 ITR 335=173 CTR 528 =167 Taxation 463 =124 Taxman
641 (Guj)
15 INFORMATION
Condition precedent – Reason to believe that income had escaped
assessment ‐ Audit objection to computation of loss ‐ Assessing
Officer not accepting objection – Subsequent reassessment notice
based on audit objection – Notice not valid ‐
Rajesh Jhaveri Stock Brokers P. Ltd. v/s. Deputy CIT.
(2006)284 ITR 593(Guj)
16 INTEREST LIABILITY
Fresh assessment ‐ Interest for delay in filing return ‐ Interest
on deficiency in advance tax payment ‐ Liability Considered ‐
Srihari (K.L)(HUF), ITO v/s.
(2001) 250 ITR 193 = 118 TAXMAN 890(SC)
17 LIMITATION – NEW PROVISIONS – NO OMISSION
Issue of notice for –Assessment years 1988‐89 to 1990‐91 –
Petitioner foreign company was engaged in business of oil
exploration and providing expertise and assistance in said field –
Proceeds from manning and management contracts received by
petitioner were originally assessed in February, 1991 under section
143(3) treating same as business income in terms of section 44BB –
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286
However, following Tribunal’s decision rendered in case of
petitioner’s expatriate employee, Assessing Officer issued a notice
under section 148 in November, 1998 seeking to reassess same
income as fees for technical services – Law prevailing on date of issue
of impugned notice would apply to instant case, and since new
section147 had come into force with effect from 1‐4‐1989 provisions
of that section were applicable – Since admittedly there was no
failure on part of petitioner to make return or to disclose fully and
truly all material facts necessary for assessment proviso to new
section, which bars issue of notice under section 148 after expiry of
four years from end of relevant assessment year, squarely applied
to facts of instant case and therefore impugned notice was barred
by limitation ‐ Since notice under section 148 was without
jurisdiction there was no merit in plea that petitioner was to be
relegated to alternative remedy .
Time limit for completion of – Provisions of section 153 are
inapplicable to issue of notice under section 148 and refer to
assessment – A ‘direction’ or ‘finding’ as contemplated by section
153(3)(ii) must be a finding necessary for disposal of a particular
case, that is to say, in respect of a particular assessee and in
relevance to a particular assessment year ‐ To be a direction as
contemplated by section 153(3)(ii), it must be an express direction
necessary for disposal of case before authority or Court – On facts
stated under heading ‘Income escaping assessment – Issue of notice
for’, it could not be said that proposed reassessment was in
consequence of, or to give effect to, any finding or direction of
Tribunal in case of petitioner’s employee and, therefore provisions of
section 153(3)(ii) would apply to facts of instant case.
Foramer France , CIT v/s.
(2003) 129 Taxman 72 = 264 ITR 566=185 CTR 512 (SC)
18 NOTICE UNDER s. 148
Recording of reasons – AO having not complied with the mandatory
requirement of recording of reasons before issuance of notice, the
impugned notice is quashed and set aside ‐ Language of s. 148(2)
does not permit recording of reasons between the date of issuance
of notice and service of notice.
Rajoo Engineers Ltd. v/s. Dy. CIT
(2008)218 CTR 53 = 207 Taxation 578(Guj)
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287
19 OMISSION
(1) Non disclosure of primary facts – Assessment years 1984‐85 and
1985‐86 ‐ Machineries in respect of which investment allowance
was claimed and allowed were sold within a period of eight years
sometime in 1986 and original assessment order for assessment
year 1984‐85 was passed on 31‐3‐1987 – Whether since assessee
failed to disclose fact of transfer before Assessing Officer during
course of original assessments, he was justified in reopening
assessments and withdrawing investment allowance – Held, yes.
Mamta Type Setting Works v/s. Asstt. CIT
(2004)134 Taxman 34=187 CTR 151‐180 Taxation 421=
267 ITR 623(Guj)
(2) Non‐disclosure of primary facts – Assessee was obliged to disclose
in his income tax return factum of his marriage with his brother’s
widow as minors became his step‐children ‐ Since that was not
done and having come to know factum of such relationship
between assessee and minors, Assessing Officer was justified in
reopening assessment.
Abdul Rahim Khan M. Pathan , CIT v/s.
(2003)131 Taxman 397(Guj)
(3) Non disclosure of primary facts – Reassessment proceeding were
initiated and a notice was issued in Feb. 2001 at behest of internal
revenue audit party pointing out that petitioner’s production unit
was not located in backward area and, hence, it was not eligible for
deduction under sections 80HH and 80‐I – Assessment was initially
made under section 143(3) on 25‐3‐1991 allowing petitioner’s claim
for deduction under sections 80HH and 80‐I – Thereafter, revisional
proceedings were initiated under section 263, assessment was set
aside and a fresh assessment was framed on 29‐9‐1994 withdrawing
deductions allowed in original assessment– On appeal, Commissioner
(Appeals) by order dated 22‐7‐1996, on 5‐2‐2001 reassessment was
reopened –Facts and evidence available on record made it
abundantly clear that there was no failure or omission of part of
petitioner to disclose full and truly all material facts necessary for
assessment – Since assessment was sought to be reopened after a
period of four years and there was admittedly no omission or
failure part of petitioner, Assessing Officer could not assume
jurisdiction under section 147.
Sheth Bros. V/s. Jt. CIT
(2003) 130 Taxman 367(Guj)
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288
Directed A.O to allow deduction claimed from 7‐11‐1995 to 31‐3‐1996.
(4) Reassessment after four years – Failure to disclose material facts
necessary for assessment – Amalgamation of companies – Assessee
holding shares in amalgamating company – Assessee allotted shares
in amalgamated company and subsequently selling them – Market
price of shares as on date of amalgamation shown as cost of
acquisition of shares – Failure to show cost of acquisition of shares
in amalgamating company in accordance with section 49(2) –
Reassessment proceedings valid.
Garden Finance Ltd. v/s. Addl. CIT
(2002) 257 ITR 481= (2003) 180 CTR 145 =173 Taxation 187=
132 Taxman 543(Guj)
(5) Position after 1‐4‐1989 – Assessment year 1996‐97 – Whether
reassesment was justified where bogus claim of depreciation was
made on non existent machinery and allowed – Held, yes.
Gruh Finance Ltd. v/s. Jt. CIT
(2002) 123 Taxman 196 (Guj)
(6) Position prior to 1‐4‐1989 – In original assessment ITO allowed
assessee’s claim of deduction of certain sum paid as commission to
sole selling agents ‐ ITO, subsequently discovered fresh material
leading to conclusion that particulars earlier furnished by assessee
were untrue – Reopening of assessment under section 147(a) was
justified ‐ Merely because case of assessee is accepted as correct in
original assessment for an assessment year, it does not preclude ITO
to reopen assessment of an earlier year on basis of his finding of
fact made on basis of fresh materials in course of assessment of next
assessment year.
Ess Ess Kay Engg. Co. (P) Ltd. v/s. CIT
(2002) 124 Taxman 491 (SC)
(7) Notice issued after four years – Failure to disclose material facts
necessary for assessment – Charitable trust ‐ Reassessment
proceedings on the ground that section 13 applied to assessee –
Burden on revenue to prove it – No such proof – List of persons
falling under section 13 furnished by assessee – Notice of
reassessment not valid – Income Tax Act, 1961, ss. 13, 147, 148 –
Constitution of India, Art. 226.
Surat City Gymkhana v/s. Deputy Commissioner of Income Tax
(2002) 254 ITR 733 (Guj)
288
289
(8) Failure to disclose material facts necessary for assessment ‐ Claim
for deduction allowed by ITO but withdrawn in revision
proceedings and allowed again on further appeal ‐ No failure to
disclose material facts regarding deduction ‐ Reassessment not
valid ‐
Sheth Brothers v/s. Joint CIT
(2001)251 ITR 270(Guj)
20 REASON TO BELIEVE
Audit objection – AO reopened the assessment at the behest
of the audit department on the ground that a assessee had
claimed loss on the basis of erroneous computation ‐ Belief
which is projected on paper is not the factual belief held by
the AO – Despite recording reasons for reopening the
assessment, the AO has lodged his objection to the proposal
made by the Audit Department to reopen the assessment and
the objection raised by the AO has been endorsed by the Addl.
Cit – Hence, AO did not hold the belief at any point of time
that income of the assessee had escaped assessment ‐
Consequently, impugned notice under s. 148 is quashed and
set aside.
Rajesh Jhaveri Stock Brokers(P) Ltd. v/s. Asstt. CIT
(2005) 196 CTR 105 = 189 Taxation 408 (Guj)
21 WRIT
(1) Alternative remedy – Notice under s. 148 – Decision of the Supreme
Court in GKN Driveshafts (India) Ltd. v/s. ITO (2003) 179 CTR (SC) 11
: (2003) 259 ITR 19 (SC) does not purport to divest the Court of its
constitutional power to issue a writ of prohibition or any other
appropriate writ in a fit case to restrain the assessing authority
from proceeding with the notice under s. 148 ‐ Said case only lays
down the procedure that should ordinarily be followed in such
case, i.e after receiving the reasons, the assessee should first
lodge his preliminary objections against the notice before the AO
who should decide the objections by a speaking order and the
assessee, if still aggrieved can challenge the order in a writ petition
– The rigour of availing of the alternative remedy before the AO for
objecting to the reassessment notice under s. 148 has been
considerably softened by the apex Court in the GKN case –
Therefore, writ petition challenging the impugned notice is
dismissed with the clarification that if the assessee lodges its
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290
preliminary objections before the AO with reference to the notice
or in relation to reasons disclosed in the additional affidavit, the AO
is to consider and decide the objections by a speaking order, and in
case the order is adverse to assessee, it would be at liberty to
challenge such order by filing a writ petition – Pre and post GKN
case position regarding maintainability of writ explained.
Garden Finance Ltd. v/s. Asstt. CIT
(2004)188 CTR 316 = 137 Taxman 49= 268 ITR 48 =
181 Taxation 481 (Guj)
(2) Issue of notice – Whether when a notice is issued under section 148,
proper course of action for notice is to file return and if he so
desires, to seek reasons for issuing notice and on receipt thereof to
file objections to issuance of notice – Held, yes – Whether where
notices were issued under sections 143(2) and 148 and all that
assessee was agitating could be submitted by filing reply to said
notices, assessee was unjustified in invoking extra ordinary writ
jurisdiction at notice stage itself – Held, yes.
GKN Driveshafts (India) Ltd. v/s. ITO
(2002) 125 Taxman 963 =(2003) 179 CTR 11 =
173 Taxation 50 = 259 ITR 19(SC)
80. RECOVERY
(1) Recovery of Tax – From Directors of Pvt. Co.Company – Director –
Director of private company – Conditions precedent for recovery of
tax due by company from director – No effective steps to effect
recovery of outstanding dues from company – Revenue initiating
action against directors – Not permissible – Income Tax Act, 1961, s.
133A.
Amit Suresh Bhatnagar v/s. ITO
(2009) 308 ITR 113 = 221 CTR 70 = 15 DTR 29 (Guj)
(2) Search and Seizure ‐ Bank accounts – Restraint order on bank –
Withdrawal of money from bank accounts of assessee by
Department in shape of fixed deposits – Not proper – Writ petition
– Challenging search – High Court – Dismissal – Appeal to Supreme
Court – Direction only for completing assessments within
permissible time – Income tax Act , 1961, ss. 132, 132B.
K.C.C Software Ltd. & Ors v/s. Director of I T (Investigation) & Ors.
(2008) 298 ITR 1 = 214 CTR 553 =204 Taxation 42 = 2 DTR 185 (SC)
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291
(3) Garnishee proceedings under s. 226(3) ‐ Units of UTI not
mature for payment – Amount invested by assessee in the
units of UTI having a lock‐in period of five years could not be
paid by the UTI to the Department in compliance of notice
under s. 226(3) issued to it, when the assessee had not
exercised the option of repurchase of the units – Assessee is
entitled to be restituted and also entitled to dividend
declared from the date of allotment.
B.M Malani & Ors., Administrator of the Specified
Undertaking of Unit Trust of India v/s.
(2007)212 CTR 425 = (2008) 296 ITR 31=202 Taxation 160
(SC)
(a) AUCTION SALE
(1) Other modes of recovery ‐Assessment year 1985‐86 – Appellant was
a registered firm with four partners – For relevant assessment year,
a total amount of Rs 12,55,150 was due from appellant towards tax,
interest and penalty, for recovery of which agricultural lands owned
by partners of appellant had been attached and sold in a public
auction by department and sale was confirmed in favour of ‘L’ –
Facts revealed that arrears of tax and interest had been accepted by
appellant that no procedural irregularity or illegality in public
auction much more than reserve price fixed by Assessing Officer
which had never been challenged by appellants – On facts, High
Court confirmed action of department in auctioning attached
property for recovery of debts – Whether High court was justified in
its view – Held, yes ‐ Whether even otherwise, since ‘L’ had
purchased said property in a valid auction and he was a bona fide
purchaser of property for value, sale could not be disturbed – Held,
yes.
Janatha Textiles v/s. Tax Recovery Officer
(2008) 216 CTR 371 = 170 Taxman 221 = 301 ITR 337 =
206 Taxation 150 (SC)
(2) Rights of Auction Purchaser ‐ Rights of third party purchaser – In a
third party auction, purchaser’s interest in the auctioned property
continues to be protected notwithstanding that underlying decree is
subsequently set aside or otherwise.
Janatha Textiles & Ors. V/s. TRO & Anr
(2008) 216 CTR 371= 301 ITR 337 = 206 Taxation 150 =
170 Taxman 221 = 7 DTR 133(SC)
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292
(b) PRIORITY
Company in liquidation – Priority of debts – Overriding
preferential payments in favour of secured creditors and
workmen – Income Tax Department cannot claim priority over
such secured creditors – Income Tax Act, 1961, s. 178 –
Companies Act, 1956, ss. 529A, 530‐
Official Liquidator of Minal Oil and Industries Ltd.,
Assistant CIT v/s.
(2007) 290 ITR 643= 210 CTR 445 = 163 Taxman 1=
(2008) 202 CTR 51 (Guj)
(c) STAY
(1) Notice under section 226(3) to recover demand of above Rs. 17
crore ‐ Stay petition & appeal pending before the Tribunal –
Assessee petitioner, a Government Trust for implementation of
Pradhan Mantri Gram Sarak Yojna – Tribunal advised to dispose of
stay petition or appeal preferably appeal by a stipulated date –
Petitioner also directed to pay demand of Rs. 50 lacs & not to seek
adjournment ‐ Notice under section 226 suspended (Notice under
section 226(3) – Appeal & stay application pending).
Gujarat State Rural Road Development Agency v/s.CIT
(2009) 208 Taxation 446 = 12 DTR 328(Guj)
(2) Interim order – When should be passed when there is “undue
hardship” ‐ Interest of Revenue to be kept in view – Central
Excise Act, 1944, s. 35F.
Benara Valves Ltd. v/s. Commissioner of Central Excise
(2007) 8 RC 6(SC)
(3) Appeal (CESTAT) – Dispensation of pre‐deposit ‐ For stay ‐ Prima
facie case – Petitioner having placed no material, except mere
assertion, to show that the condition of pre‐deposit of entire
demand of service tax and penalties levied upon it would cause
undue hardship to the petitioner, and the Tribunal having found that
no prima facie case exists for absolute stay of demand, order passed
by the Tribunal directing the petitioner to deposit only the amount of
service tax is justified.
Comed Laboratories Ltd. v/s. Union of India & Anr.
(2008) 217 CTR 262 = 7 DTR 384(Guj)
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293
(4) Customs Duty ‐ Appeal – Deposit of duty or interest demanded –
Application for waiver of pre‐condition of deposit ‐ “Undue
hardship” and “safeguard interests of Revenue” to be condiered ‐
Scope of – Customs Act, 1962, s. 129E.
Indu Nissan Oxo Chemical Ind. Ltd. v/s. Union of India
(2008)10 RC 159(SC)
(5) Stay of appeal and stay petition pending before Tribunal – In
view of the facts and circumstances of the case and CBDT
Instruction No. 1914 dt. 2 nd Dec. 1993 stay of recovery of
outstanding demand in question is granted to the petitioner till
the Tribunal decides the stay application pending before it on
the condition that the petitioner a State Government
undertaking shall furnish bank guarantee or a letter from the
State Government to the tune of Rs. Twenty crores within one
week.
Gujarat Maritime Board , Asstt. CIT v/s.
(2008) 220 CTR 390 = 15 DTR 70(Guj)
(6) Stay ‐ Sales Tax ‐ Assessment ‐ Appeal – Stay pending appeal –
Refusal to stay – Appeal to Supreme Court – Supreme Court
interferes only in special cases ‐ Deposit of huge amount demanded
– Assessee, a public sector company and in sound financial position
– Supreme Court directing Assistant Commissioner to hear appeal
within three months – Assessee not required to deposit any amount
– Orissa Sales Tax Act, 1947.
Bharat Petroleum Corp. Ltd. v/s. Commissioner of Sales Tax
(2008) 11 RC 492(SC)
(7) Stay Pending Appeal ‐ Nothing recoverable as tax unless permitted
by law – Constitution of India, Arts. 265, 366 (28).Executive ‐ Cannot
levy tax – Cannot resort to process of interpretation for such
purpose.
Indian Bank’s Association v/s. Devkala Consultancy Service.
(2004)267 ITR 179=137 Taxman 69 = 189 CTR 157=
181 Taxation 43 (SC)
(8) Sick Industrial Company – Suspension of recovery proceedings
against company – Proceedings under section 226(3) would amount
to coercive recovery – Income Tax on purchase price to be recovered
from purchasers ‐ Sick company not required to pay – Liability to
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pay Income Tax on future income would not arise at this stage ‐
Proceedings stayed as interim relief – May be continued with
consent of board for Industrial and Financial reconstruction.
Ezy Slide Fastners Ltd. v/s. Joint CIT (Assessment)
(2004)269 ITR 548 = 191 CTR 36 = 183 Taxation 399 (Guj)
(9) Section 261 of the Income Tax Act, 1961 ‐ Supreme Court ‐ Appeal
to ‐ Single Judge, by an interim order, granted stay of
proceedings before Income Tax authorities provided appellant
deposited Rs. 5 crores against tax demand of Rs. 40 crores ‐
Whether there was any reason to interfere with said order ‐ Held, no
‐ Whether since only a sum of Rs. 1.20 crores remained to be
deposited, appellant's undertaking to make that deposit within
two weeks could be accepted, and upon that deposit being made,
income tax proceedings should remain stayed ‐ Held, yes.
Wipro Finance Ltd. v/s. Union of India
(2001) 118 ITR 825 (SC)
81. RECTIFICATION
(a) DEBATABLE ISSUE
(1) Assessment years 1990‐91 and 1991‐92 – For relevant assessment
years unabsorbed investment allowance relatable to assessment
years 1982‐83 to 1989‐90 was excluded by virtue of provisions of
section 115J – Assessing Officer accepted return of income under
section 143(1)(a) and no prima facie adjustment was made –
Subsequently, orders under section 154 were framed by Assessing
Officer placing reliance on section 115J(2) as well as CBDT’s Circular
No. 495 and unabsorbed investment allowance was disallowed to
extent to which such amount was allowed to be carried forward and
set off while computing income under section 115J – In view of
decision in Gujarat Petrosynthese Ltd. v/s. P.L Rungta (Special Civil
Application No. 1245 of 1993), Tribunal was right in law in modifying
orders under section 154 – Held, yes.
Fag Precision Bearing Ltd., CIT v/s.
(2009) 176 Taxman 27(Guj)
(2) Actual cost – Depreciation ‐ Investment allowance – Exclusion
of interest component on deferred payment for machinery –
Debatable issue – Rectification not permissible–Income Tax
Act,1961, ss. 43(1),Expln. 8, 154.
Digvijaya Cement Co. Ltd., CIT v/s.
(2008) 305 ITR 267 = 205 Taxation 245 = 4 DTR 64 (Guj)
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295
(3) Set off of carried forward reliefs vis‐à‐vis deductions for current year
– AO rectified the assessment to change the order of precedence of
deduction under s. 80J, development rebate, deduction under s. 80P,
carried forward loss, unabsorbed depreciation, unabsorbed
development rebate, etc. which according to him, were not in the
correct order of priorities – Action not sustainable ‐ Order of priority
amongst different items viz, carried forward business losses,
unabsorbed development rebate and depreciation of earlier years
vis‐à‐vis reliefs relating to current year is an issue that has not been
finally resolved and is not free from doubt – A decision on a
debatable point of law is not a mistake apparent from record –
Rectification was not permissible.
Chaltan Vibhag Udyog Khand Sahakari Mandli Ltd. , CIT v/s.
(2006) 200 CTR 86 = 282 ITR 385 = 192 Taxation 326 (Guj)
(4) Omission to apply r.2B(2)–Sub r.(2) of r.2B is mandatory in
nature and WTO having committed mistake in not applying r.
2B(2), in the valuation of shares held by the assessee as stock in
trade, he was justified in exercising his jurisdiction under s. 35
‐
Minalben Rameshbhai Jhaveri L/H. of Smt. Manoram B. Dalal,
CWT v/s.
(2006)206 CTR 412=(2007)196 Taxation 250=294 ITR 394 (Guj)
(5) Validity ‐ Applicability of s. 155 (7A) – Provisions of s. 155(7A) were
inserted with retrospective effect from 1st April, 1974 – Therefore ITO
had no jurisdiction to invoke the provisions of said section for asst.
yr. 1972‐73 and pass the order of rectification under the provisions
of s. 154 r/w s. 155(7A).
Motichand Virpal Shah, CIT v/s.
(2002) 172 CTR 734 = 121 Taxman 472(Guj)
(b) GENERAL PRINCIPLES
Abuse of authority ‐ Utilising power to rectify to nullify benefit to
assessee under Kar vivid samadhan scheme ‐ Rectification order not
communicated to assessee – Vitiates order rectification.
Assessment by intimation – Order of rectification deleting
adjustments made – Opportunity to be heard – Not necessary.
Shaily Engineering Plastic Ltd. , CIT v/s.
(2002) 258 ITR 437 =(2003)179 CTR 14 = 126 Taxman 177 (SC)
295
296
(c) LIMITATION
(1) Change of law – Assessment made on 25 th March, 1982 –
Period of limitation for making rectification under the
unamended provision of s. 154(7) would have expired on 24 th
March, 1986 – However, in the meantime amended s. 154(7)
extended the time limit for passing the order of rectification
whereby the period of four years is to be computed from the
end of the financial year in which order sought to be amended
was passed – Therefore, extended period of limitation was
applicable, and the rectification made on 31 st March, 1986 was
not barred by limitation.
Super Cast Alloy Foundries Ltd., CIT v/s.
(2005) 194 CTR 194 =275 ITR 199 = 186 Taxation 450 =
(2006) 153 Taxman 175( (Guj)
(d) POWERS
(1) Reference ‐ Application for ‐ Whether Tribunal entitled to
rectify order passed on application – High Court upholding
rectification – Supreme Court ‐ Special leave petition from
judgment relied on by High Court dismissed ‐ Appeal dismissed
– Income Tax Act, 1961, ss. 254, 256(1) .
Kerala Road Lines v/s. CIT
(2008)299 ITR 343= 215 CTR 401 =168 Taxman 308 =4 DTR 305 (SC)
(2) Appellate Tribunal ‐ Powers of Rectification – Non
consideration of Judgment of HC/SC ‐ Assessment year 1996‐97 –
Whether non consideration of a decision of Jurisdictional High Court
or of Supreme Court can be said to be a mistake apparent from
record which can be rectified under section 254(2) – Held, yes.
Saurashtra Kutch Stock Exchange Ltd., Asstt. CIT
(2008)173 Taxman 322 =305 ITR 227 = 12 DTR 346=
(2009) 208 Taxation 90 (SC)
(3) Appeal – Tribunal – Rectification under s. 254(2) – Limitation
Application for rectification under s. 254(2) having been made within
296
297
four years, the order passed by the Tribunal on the application after
expiry of four year period cannot be held to be time barred.
Sree Ayyanar Spinning & Weaving Mills Ltd. V/s. CIT
(2008) 216 CTR 351 = 301 ITR 434 = 171 Taxman 498 = 7 DTR 57(SC)
(4) Appeal to Tribunal ‐ Powers of Tribunal – Power to rectify
mistakes on record – Scope of – Fundamental principle – No
party appearing before Tribunal should suffer on account of
mistake committed by Tribunal – Failure to consider decision
of co‐ordinate Bench cited by assessee – Is a mistake – Income
Tax Act, 1961, ss. 43A, 154, 254.
Honda Siel Power Products Ltd. v/s. CIT
(2007)295 ITR 466 = 165 Taxman 307 = 213 CTR 425(SC)
(e) s. 155(7A)
(1) Debatable issue – Export market development allowance
under s. 35B – AO had nowhere mentioned in the assessment
order various sub‐clauses of s. 35B(1)(b) under which the
respective items were allowed weighted deduction –
Therefore, it cannot be said one way or the other that each of
the disputed items had been allowed only under sub‐cls.(i) and
(iii) of s. 35B(1)(b) which was not permissible – Items in
question are capable of being governed by different sub‐
clauses of s. 35B(1)(b) – It is highly debatable issue as to
which item fell under which sub‐clause ‐ Therefore,
rectification to withdraw weighted deduction was not
substainable.
Gujarat State Export Corpn. Ltd., CIT v/s.
(2005) 198 CTR 251 = 279 ITR 477 (Guj)
(2) Share percentage of assessee trust’s beneficiaries totaling to 50 per
cent of assessee’s income, was to be accumulated and payment
was to be deferred for a period of 19 years ‐ In original assessment
proceedings one half of income was taxed in beneficiaries’ hands
and other half in trustees’ hands under section 161 on respective
shares of each beneficiaries – Subsequently, ITO noticed that income
falling under share of each beneficiary was wrongly taxed at rate
applicable to share of each beneficiary instead of individual rate of
tax calculated separately and applicable to total income of each
beneficiary and invoked section 154 – Assessment of trustee
would have to be made in same status as that of beneficiary whose
interest was sought to be taxed in hands of trustees – Total income
297
298
of beneficiary, i.e share of income of trust receivable by such
beneficiary under deed as well as other income of beneficiary which
would make up his total income, was required to be taken into
account for purpose of ascertaining rate at which total income of
such beneficiary was to be taxed –Merely because payment of
income which had accrued and which was credited to accounts of
beneficiaries since it was receivable each year, was delayed over a
period, it could not be said that income did not accrue in relevant
previous year – Therefore ITO was justified in passing rectification
order.
Ganesh Chhababhai Vallabhai Patel v/s CIT
(2003) 130 Taxman 163 = (2002) 175 CTR 498 =
169 Taxation 637 =258 ITR 193(Guj)
(3) Assessee claiming exemption under section 11 of the Income Tax Act
– Assessee duly registered under section 12A by CIT – Exemption
refused and confirmed by the Tribunal – Assessee filing Misc.
Application requesting the Tribunal to recall the order since
judgment of the jurisdictional High Court not considered – Tribunal
recalling the order and ordering the case to be re‐heard –
Department challenging the action of the ITAT since, according to
them, it did not amount to mistake apparent requiring rectification
– Held, judgment of the jurisdictional High Court binding on the
Tribunal and Tribunal right in recalling its order ‐ Tribunal rightly
held that the case be re‐heard.
Saurashtra Kutch Stock Exchange Ltd., ACIT
(2003) 175 Taxation 151 262 ITR 146 = 130 Taxman 316 =
183 CTR 364 (Guj)
(4) In pursuance of an order passed by Tribunal, assessee became
entitled to refund – ITO also awarded interest under section
244(1A) along with refund – Simply because Tribunal did not give
any direction with regard to payment of interest, it could not be
said that assessee was disentitled to amount of interest – Therefore
no mistake was committed by ITO in awarding amount of interest
and, as such there was no question of passing any order for
rectification.
Bombay Conductors & Electrical (P). Ltd. , CIT v/s.
(2003) 131 Taxman 204 = 184 CTR 439 = 264 ITR 485 =
(2004) 178 Taxation 120 (Guj)
(5) Omission to apply Supreme Court decision – Tribunal upheld the
orders of the AO and the CIT(A) that there was no genuine
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299
conversion of the shares into stock‐in‐trade as claimed by the
assessee before transferring the same into the partnership firm and
held that the transaction in question would amount to a transfer
within the meaning of s.2(47) in the light of the decision in Sunil
Siddharthbhai v/s. CIT (1985) 49 CTR (SC) 172 : (1985) 156 ITR 509
(SC) – However, the Tribunal failed to record a finding in relation to
the second proposition of law that such a case falls outside the
scope of capital gains tax – Hence, Tribunal was justified in
exercising its powers under s. 254(2).
Subodchandra S. Patel, CIT v/s.
(2003) 184 CTR 393=138 Taxman 185 =(2004) 265 ITR 445 (Guj)
(6) Assessing Officer invoking provisions of section 155(7A) ‐
Assessment year 1972‐73 ‐ Held, provisions of section 155(7A)
introduced with effect from 1st April, 1994, assessment year
1972‐73 not covered by the same ‐ Assessing Officer not
justified in applying the provisions .
Motichand Virpal Shah, CIT v/s.
(2001) 165 TAXATION 255 = 252 ITR 718 = (2002) 175 CTR 159(GUJ)
82. REFERENCE
(a) POWERS
(1) Powers of court ‐ No interference where authority has
exercised discretion property.
D.M Engineering v/s. CIT
(2007) 289 ITR 517= (2006) 152 Taxman 177 =
(2005)192 Taxation 565 =199 CTR 545(Guj)
(2) Question not raised before Tribunal ‐ High Court cannot consider
it.
Silk Museum v/s. CIT
(2002) 257 ITR 22 = 175 CTR 604 = 170 Taxation 137=
(2003) 131 Taxman 491 (Guj)
(3) Question arising out of order of Tribunal ‐ Question not raised
before the Tribunal ‐ Cannot be directed to be referred.
Abhijit Iron Processors (P) Ltd., CIT v/s.
(2002) 176 CTR 100 (SC)
(b) PROCEDURE
299
300
(1) Can refuse to answer if there is no question of law – Even if
reference is on direction of High Court.
Principles – High Court – Finding of fact – What is – High Court
cannot interfere with a finding of fact of the Tribunal–
Question of law – What is a question of law in regard to
finding of fact.
M.N Moni, Commr. of Agrl I.T v/s.
(2007) 291 ITR 387= 210 CTR 82 = 161 Taxman 207(SC)
(2) Question referred at instance of assessee – Assessee not
present at the hearing before High Court – High Court would
not consider question ‐ Income Tax Act, 1961, s. 256.
Dosani (D.N), CIT v/s.
(2006) 280 ITR 275 = 200 CTR 76 = 153 Taxman 13 =
192 Taxation 594 (Guj)
(c) QUESTION OF LAW
(1) Question not arising out of Tribunal’s order – Rectification
under s. 254(2) – First order dt. 20 th Aug., 1987, was recalled by
the Tribunal by passing an order dt. 2 nd Dec., 1987 passed on
miscellaneous application ‐ Appeals came to be disposed of by
the third order dt. 26 th Feb., 1988 ‐ Therefore, if the Revenue
was aggrieved, it was by the order dt. 2 nd Dec. 1987 –
Contention of the Revenue that order dt. 2 nd Dec., 1987, is part
and parcel of order dt. 26 th Feb., 1988, cannot be accepted as
these orders were passed in separate proceedings – Revenue
has not challenged the order dt. 2 nd Dec. 1987 ‐ Question
whether the Tribunal was right in recalling the order does not
arise out of the impugned order dt. 26 th Feb., 1988 – Question
is returned unanswered.
Kashiram Textile Mills (P) Ltd., CIT v/s.
(2006) 202 CTR 293 = 284 ITR 61 = 193 Taxation 438
(2007) 160 Taxman 4 (Guj)
(2) Appeal – Question of law – Charitable trust – Exemption – Amount
received from abroad in violation of foreign contribution law –
Application for registration as charitable trust – Whether made
before or after receipt of amount from abroad – Whether
disentitles charitable trust from exemption ‐ Substantial question of
law arises.
Jag Shanti Charitable Trust, Director of Income Tax v/s.
(2006) 285 ITR 227 = 205 CTR 124 = 156 Taxman 148 (SC)
300
301
(3) Penalty under s. 273(2)(aa) – Question whether penalty
proceedings under s. 273(2)(aa) can be initiated in
reassessment proceedings is a question of law ‐ Decision in
Modi Industries Ltd. & Ors. Vs. CIT & Anr. (1995) 128 CTR (SC)
361 : (1995) 216 ITR 759 (SC) cannot be said to have concluded
the said issue in favour of assessee ‐ Therefore, Tribunal is
directed to draw up the statement of case and refer the
question to the High Court.
L.M.P Precision Engr. Co. (P) Ltd., CIT v/s.
(2005)193 CTR 592 =142 Taxman 547 =186 Taxation 632 (SC)
(4) Return of loss filed beyond prescribed time ‐ Assessee whether
entitled to carry forward of loss for set off – Is a question of law
arising under the 1961 Act – Income Tax Act, 1961, ss. 139(3),
256(2) – Indian Income Tax Act, 1922, s.2.
Alok Enterprises, CIT v/s.
(2004)266 ITR 399 =137 Taxman 343 =181 Taxation 134=
190 CTR 390 (SC)
(5) Valuation of immovable property ‐ WTO adopted average of land and
building method and yield to arrive at the assessable value of cold
storage as against the value determined by DVO buy land and
building method – Tribunal confirmed the same and declined to
refer the question – High Court also declined to call for a reference
‐ No interference called for in the facts and circumstances of the
case.
Sood A.R , CWT v/s.
(2004)187 CTR 310 = 180 Taxation 650(Guj)
(6) Question of fact – Net wealth – Assessee and other beneficiaries of
the trust, assigned their interest derived from a firm in favour of BOI
– Assessee claimed exclusion of such beneficial interest from his
net wealth – AO rejected the claim on the ground that the creation of
BOI and the assignment was a sham and bogus transaction – CWT(A)
and the Tribunal found as a fact that the creation of BOI and the
assignment of assets was not sham or bogus activity – High Court
was right in rejecting application under s. 27(3) ‐ No referable
question arises.
Lov S. Kinariwala, CWT v/s.
(2003)179 CTR 9 = 126 Taxman 198 = 259 ITR 440 =
172 Taxation 470(SC)
301
302
(7) Question of law – Rate of tax –Concessional rate ‐“Industrial
company” – Company producing publicity material for newspapers,
periodicals, journals etc. and printing material for calendars,
production of software, designs and publicity texts etc. – Is an
“Industrial Company” – No question of law arises from such finding
of the Appellate Tribunal‐Income Tax Act, 1961, s.256–Finance Acts.
Shilpi Advertising Ltd., CIT v/s.
(2003) 263 ITR 479 = 133 Taxman 666 (SC)
(8) Charitable purpose – Exemption ‐Accumulation up to 25 per cent of
income – Appellate Tribunal ‐ Decision that agricultural income not
to be included in total income for computing 25 per cent. of
income ‐ Question of law arises ‐ High Court should call for a case
and not decide the application on merits of question – Income Tax
Act, 1961, ss. 10(1), 11(1), 256(2).
Nabhinandan Digamber Jain , CIT v/s.
(2003) 263 ITR 516 = 185 CTR 197 = 133 Taxman 663 =
(2004) 178 Taxation 393 (SC)
(9) Valuation of closing stock – Change in method of valuation – Change
from cost price or market price whichever is lower to adding direct
cost to material in process and finished goods – Finding by Tribunal
that change bona fide ‐ New method regularly followed in
succeeding years ‐ Reduction of income on account of changed
method not includible in income of assessee ‐ Tribunal justified in
deleting additions – No question of law arises.
Atul Products Ltd. , CIT v/s.
(2002) 255 ITR 85 = 166 Taxation 209 = 125 Taxman 727=
(2001) 170 CTR 371 (Guj)
(10) Accounted receipts ‐ Onus in respect of on money to show
investment of funds – Question of law.
Abhishek Corporation, CIT v/s.
(2002) 255 ITR 45 = 124 Taxman 73 = 175 CTR 601 =
169 Taxman 521 (SC)
(11) Bad Debt – Amendment of section 36(1)(vii) by Finance Act with
effect from 1‐4‐1989 – Effect ‐ Assessee not required to establish
that debt had become bad in previous year ‐ Mere writing off of
amount of bad debt sufficient ‐ Genuineness of claim of assessee
not in doubt ‐ No chance for assessee to recover amount – No
question of law arises for reference.
Girish Bhagwatiprasad, CIT v/s.
(2002) 256 ITR 772 (Guj)
302
303
(12) Assessee a joint sector company – Public sector companies holding
40 per cent of shareholding – Person laundering black money
through Sikkim private company ‐ Sikkim company holding shares
in assessee company – Finding that addition could not be made to
assessee’s income on the basis of money invested in shares of
assessee company – Finding of fact – No question of law arises.
Gujarat Heavy Chemicals Ltd., CIT v/s.
(2002) 256 ITR 795 = 176 CTR 487 (SC)
(13) Capital gains – Transfer by company to subsidiary – Surplus realized
on sale of shares – Whether exempt ‐ Mixed question of law and
fact – Should be referred.
Leena Investment P. Ltd., CIT v/s.
(2002) 256 ITR 798(SC)
(14) Deduction under s. 80‐I – Question whether interest income could be
included in gross total income while computing deduction under s.
80‐I is a question of law –
Abhijit Iron Processors (P) Ltd., CIT v/s.
(2002) 176 CTR 100 (SC)
(15) Deemed Wealth ‐ Tribunal held that value of stock in trade does not
require to be included in net wealth for purpose of determining
wealth tax liability of assessee company – Whether any referable
question of law arose from Tribunal’s order – Held, yes.
London Star Diamond Co. (I) (P) Ltd., CWT v/s.
(2002) 122 Taxman 110 (SC)
(16) A part of sale proceeds in respect of sales pertaining to financial year
1981‐82 was realized up to October, 1982, i.e before taking over of
business by assessee – As no corresponding cash was found during
course of search proceedings in May, 1983, Tribunal confirmed
addition of said amount – Whether a question of law arose out of
Tribunal’s order – Held, yes.
Vijay Kumar Talwar v/s. CIT
(2002) 123 Taxman 668(SC)
303
304
(17) Allowable as ‐ Tribunal held that payment on account of technical
know how was allowable as revenue expenditure ‐ Whether a
referable question of law arose from Tribunal's order ‐ Held, yes.
Krupp Industries India Ltd., CIT v/s.
(2001) 117 TAXMAN 121(SC)
(18) Additions of Income ‐ Income of family trust of which assessee was
trustee was assessed substantively in his hands and on protective
basis in hands of trust on ground that said trust was not genuine
and that a medical instrument, rental income from which was
claimed to be that of trust, in fact, belonged to assessee ‐
Tribunal found that statement of settlor of trust that said
instrument was not sold to trust was recorded behind back of
assessee and that rental income was not disproportionate to cost of
instrument and same was being properly assessed separately ‐
Whether in view of above finding of fact by Tribunal and revenue
having failed to show that any material evidence was ignored or
any evidence not legally admissible was taken into consideration
by Tribunal and there being no claim of mis‐application of legal
provisions, it would be wrong to say that finding of fact of Tribunal
was vitiated ‐
Held, yes ‐ Whether a referable question of law arose from
Tribunal's order ‐ Held, no
Navlekar(Dr.) (U.S), CIT v/s.
(2001) 117 TAXMAN 514(GUJ)
(19) Question of Law ‐ New Industrial Undertaking ‐ Special deduction ‐
Assessee other than company or co‐operative society ‐ Audit report
‐ Not filed with return ‐ Appellate Tribunal holding that filing
audit report during assessment proceedings amounted to
substantial compliance Whether Tribunal was right in law in so
holding ‐ Question of law.
Panama Chemicals Works , CIT v/s.
(2001) 250 ITR 661(SC)
(20) Question of Law ‐ "Plant” ‐ Question of law ‐ Depreciation ‐ Liquor
business ‐ Bottles used whether "plant" ‐ Question of law –
Doongaji and Co. , CIT v/s.
(2001) 250 ITR 750 = 170 CTR 186(SC)
304
305
(21) Question of Law ‐ Company ‐ Subscribed capital ‐ Increase ‐ Tribunal
finding not a device for converting black money into white with the
help of investment company ‐ No question of law arises ‐
Setteller Investment Ltd., CIT v/s.
(2001) 251 ITR 263 = 115 TAXMAN 99(SC)
(22) Question of Law ‐ Search and Seizure ‐ Law applicable ‐ Explanation
added with effect from April 1, 1989, enabling exemination of
person not merely in respect of books, documents or assets found
in premises searched ‐ Whether applicable where search
conducted before that date and no such books etc. found ‐
Questions relating to scope and ambit of provision and whether
explanation is merely procedural ‐ Are questions of law ‐ High
Court ‐ Application for calling for reference‐ Determination of such
questions of merits ‐ Not proper‐
Sri Ramdas Motor Transport Ltd., CIT v/s.
(2001) 251 ITR 428(SC)
(23) Question of Law ‐ Penalty u/s. 272A ‐ Section 272A, read with section
256, of the Income Tax Act, 1961 – Penalty – For failure to answer
question, sign statements, etc. ‐ Assessee deducted tax at source
within specified time and deposited said amount into
Government account ‐ However, assessee did not forward certificate
under section 203 to payee under bona fide belief that same could
be forwarded at end of accounting year ‐ Whether default on
assessee's part was a technical default and, hence, no penalty was
leviable on assessee under section 272A(2)(g) and no question of
law could be said to arise from Tribunal's order deleting penalty ‐
Held, yes ‐
Harsiddh Construction (P) Ltd., CIT v/s.
(2001) 118 Taxman 760 (GUJ)
305
306
(24) Reference ‐ Question of Law ‐ Appeal (High Court) ‐ Substantial
question of law ‐ Genuineness of purchases ‐ AO treated the
purchases made by assessee from G as fake on the ground that G
was not a genuine party ‐ Assessee produced all relevant materials
to show the purchase of material from G and its use in production ‐
AO has accepted the existence of G in the case of another party ‐
Tribunal accepted the genuiness of the purchases on appreciation
of evidence produced by assessee ‐ No question of law arises.
Adinath Industries , Dy. CIT v/s.
(2001) 170 CTR 262 = 252 ITR 476 = 165 Taxation 492(GUJ)
(25) Change in method of valuation of stock ‐ If the change is bona fide,
it is not open to the Revenue to add any amount in the taxable
income of the assessee, even if the taxable income is reduced on
account of the changed method ‐ Finding of fact recorded by the
Tribunal that the assessee had changed the method of stock
valuation with a bona fide intention in order to follow the method
which was followed by all other units in the industry ‐ New method
continuously followed in the subsequent years ‐ Revenue has not
objected to the change made by the assessee in the subsequent
years ‐ Tribunal was right in confirming the order of CIT(A) deleting
the addition representing the alleged under valuation of closing
stock ‐ Neither the application under s. 256(2) nor the appeal
under s. 260A maintainable.
Atul Products Ltd. , CIT v/s.
(2001) 170 CTR 371= (2002) 255 ITR 85 =166 Taxation 209 =
125 Taxman 727(Guj)
(27) Firm ‐ Registration ‐ Firm formed in contravention of liquor rules ‐
Whether entitled to registration ‐ Question of law ‐
Laxmi Wine Merchants, CIT v/s.
(2001) 251 ITR 882 = 171 CTR 192 = 119 Taxman 1033(SC)
83. REFUND
(a) INTEREST ON REFUND
(1) Deduction of tax at source ‐ Entitled to interest – Income tax Act,
1961, ss.214(2), 237, 243(1)(b), 244(1A), 244A(1) – Central Board of
Direct Taxes Instruction No. 2 of 2007 dated 28‐3‐2007.
Gujarat Flourochemicals Ltd. V/s. CIT
(2008)300 ITR 328 = 15 DTR 1 = (2007) 210 CTR 587Guj)
306
307
(2) Interest under ss. 214(2), 243(1)(b) & 244(1A) ‐ Interest on interest –
Assessee was entitled to interest on refund of TDS as well as
compensation by way of interest on interest for delay in payment of
amounts lawfully due to the assessee which were withheld wrongly
and contrary to law.
Gujarat Flourochemicals Ltd., CIT & Ors.
(2007)210 CTR 587 = 15 DTR 1 = (2007) 210 CTR 587 (Guj)
(3) Interest on interest – Assessee is entitled to interest under s.
244(1A) on the amount of refund from the date of assessment order
to the date of payment of refund and also to payment of interest
on interest payable on refund from the date of refund to the date
on which the amount of interest is paid.
Garden Silk Mills Ltd. v/s. Dy. CIT & Ors.
(2006)204 CTR 441 =195 Taxation 618=
(2007) 164 Taxman 572 (Guj)
(4) Self assessment – Advance Tax – Assessee filing return and paying
tax by self assessment ‐ Assessment order made by Assessing
Officer held void ab initio ‐ Assessee not entitled to refund of
Advance Tax paid and tax paid on self assessment ‐ Excess tax paid
by assessee out of abundant caution or owing to error or non‐
taxability ‐ Has to be refunded.
Shelly Products, CIT v/s.
(2003)261 ITR 367 = 129 Taxman 271 = 181 CTR 564 =
175 Taxation 434 (SC)
(5) Delay in applying for refund – Power of CBDT to condone delay –
Assessee satisfying conditions laid down for condonation of delay in
circular issued by CBDT – CBDT not justified in refusing to condone
delay on the ground that there was no “genuine hardship” – Phrase
“genuine hardship” should be construed liberally.
Gujarat Electric Co. Ltd. v/s. CIT & Anr.
(2002) 255 ITR 396 = 172 CTR 220 = 167 Taxation 243 =
120 Taxman 733(Guj)
(6) Interest under s. 244(1A) ‐ The case of D.J Works of Gujarat High
Court is approved by Supreme Court in the case.
Narendra Doshi, CIT v/s.
(2002)254 ITR 606(SC)
See also “Interest payable to Assessee.
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308
(b) DOCTRINE OF UNJUST ENRICHMENT ‐ REFUND
(1) Business Profits Tax ‐ Provisional assessment ‐ Tax paid as
determined under provisional assessment ‐ Regular assessment ‐
Declared as invalid owing to period of limitation – Refund of tax
paid on provisional assessment ‐ Also barred by limitation ‐
Business Profits Tax Act, 1947, ss. 12, 13 ‐ Business Profits Tax
Rules,1947, R. 4A – Indian Income Tax Act, 1922, s. 50 ‐ Limitation
Act, 1963, Sch. Art. 137.
British India Corporation Ltd., Union of India v/s.
(2004)267 TR 481 =190 CTR 385 = 140 Taxman 357=
183 Taxation 1(SC)
(2) Writ Petition – Claim for refund of cess pursuant to decision of
Supreme Court declaring levy invalid maintainable – Binding nature
of Supreme Court decision – Effective even in regard to those
parties who had not appealed to the Supreme Court –
U.P Pollution Control Board v/s. Kanoria Industries Ltd.
(2003)259 R 321 = 180 CTR 402 =174 Taxation 629 =
180 CTR 402(SC)
(3) Stay order on deposit of rupees one crore – Department to refund
amount deposited with interest if dealer succeeds in appeal ‐
Order of High Court made under writ jurisdiction not governed by
provisions of Sales Tax Act relating to refunds ‐ Refund should be
made of amount deposited with interest from date of deposit of
amount pursuant to order of High Court –
Tata Refractories Ltd. v/s. Sales Tax Officer
(2003) 260 ITR 312(SC)
(4) Levy of vend fee on industrial alcohal by State legislature ‐
Supreme Court declared the levy invalid prospectively ‐ Vend fee
which had been levied by the appropriate State enactments but
not collected by reasons of the orders of the Supreme Court of
otherwise, cannot be collected after 25th Oct., 1989, as the levy has
been held to be invalid prospectively by the judgment in
Synthetics and Chemicals Ltd. v/s. State of U.P (1990) 1 SCC 109 ‐
Vend fee already realised by the States is not to be refunded to the
appellants ‐ At the same time, the State cannot collect any vend
fee for the period prior to 25th Oct., 1989, or thereafter,
notwithstanding that notices of demand may have been issued or
recovery proceedings initiated ‐ Furnishing of a bank guarantee for
all or part of the disputed duty pursuant to an order of the Court is
308
309
not equivalent to payment of the amount of the duty ‐ Principal of
unjust enrichment is not applicable in view of the direction given in
the decision that no refund is to be given ‐
Somaiya Organics (India) Ltd. & Anr. v/s. State of Uttar Pradesh &
Anr.
(2001) 170 CTR 81(SC)
(c) WHEN AVAILABLE
Application for – Rejected by Assessing Authority – Appeal to
Collector (Appeals) – Appeal allowed by Collector – No further
appeal by Department – Order of Collector attaining finality in
1989 – Section 11B does not apply – Judicial discipline rule
applies – Department to comply with order of Collector –
Cannot raise plea of unjust enrichment – Scope of retrospective
operation of section 11B – Central Excise Act, 1944, s. 11B.
Triveni Chemicals Ltd. v/s. Union of India
2007) 8 RC 76(SC)
84. REHABILITATION ALLOWANCE – S.33B
Rehabilitation allowance is admissible not only on amount of
deduction allowable under section 32(1)(iii) in respect of assets
destroyed but also in respect of other assets extensively damaged
in flood, etc. worked out on basis of same formula, as is provided
for assets destroyed namely of deducting ‘moneys payable’, as
explained in Explanation 1 to section 32(1)(iii) and scrap value, if
any from written down value of damaged assets .
Klin Industrial (P) Ltd. v/s. ITO
(2003) 129 Taxman 34 = 261 ITR 338 = 174 Taxation 541
= 182 CTR 362 (Guj)
85. REMAND
(a) SUBSEQUENT NEW SOURCES
Appeal to Commissioner (Appeals) – Powers of Assessing Officer –
Appeal with regard to particular items – Commissioner (Appeals)
setting aside order of assessment and directing reframing of
assessment ‐ Not an open set aside ‐ Assessing Officer cannot
process new sources of income – Income Tax Act, 1961, s. 251.
Saheli Synthetics P. Ltd. v/s. CIT
(2008) 302 ITR 126 = 205 Taxation 297 = 3 DTR 310(Guj)
See “ Appeal to CIT(A)” , “Appeal to Tribunal” & “Tribunal Powers”.
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310
86. REMISSION
(1) Profits chargeable to tax under s. 41(1) – Remission of unsecured
loans – Admittedly, there had been no allowance or deduction of
loans in any of the preceding years – Hence, the benefit arising as a
result of remission of unsecured loans was not taxable under s.
41(1).
Chetan Chemicals Pvt. Ltd., CIT v/s.
(2004)188 CTR 572 =180 Taxation 244 =267 ITR 770=139 Taxman
301 (Guj)
(2) Benefit or perquisite under s. 28(iv) – Remission of unsecured loans
– Assessee company not carrying on business of obtaining loans ‐
Therefore remission of loans by the creditors of the company was
not a benefit taxable under s. 28(iv).
Chetan Chemicals Pvt. Ltd., CIT v/s.
(2003)188 CTR 572 =180 Taxation 244=267 ITR 770 =
139 Taxman 301 (Guj)
(3) Business income ‐ Profits chargeable to tax under s. 41(1) ‐ Excess
provision for bonus written back ‐ For charging any amount under
the provisions of s. 41(1) there should be either remission of
the liability by the concerned creditor or there should be cessation
of liability ‐ Assessee has written back a sum which was debited as
bonus payable to the workmen in the past ‐ Workmen who were to
be paid bonus have not executed any writing for remission of the
liability ‐ There is nothing on record to show that the workmen had
waived their right to get the bonus ‐ Liability of the assessee had not
come to an end even otherwise ‐ It cannot be said that there was a
cessation of liability simply because the suit for recovery of said
amount is barred by the law of limitation ‐ Tribunal rightly deleted
the addition.
Silver Cotton Mills Co. Ltd., CIT v/s.
(2001)170 CTR 377(GUJ)
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311
(4) Amount received in respect of expenditure – Remission or cessation
of trading Liability ‐ Are distinct – Excise duty refunded to assessee
pursuant to decision of CEGAT – Is amount received in respect of
expenditure and not remission or cessation of trading liability –
Has to be treated as deemed profit – Pendency of special leave
petition in Supreme Court against decision of CEGAT – Not relevant.
Polyflex (India) Pvt. Ltd. v/s. CIT
(2002) 257 ITR 343 = 177 CTR 93 = 124 Taxman 373 =
171 Taxation 183 (SC)
(5) Succession to business – Business of erstwhile firm was taken over by
an ex‐partner (assessee) as a going concern – Assessee received
sales tax refund subsequently ‐ Identity of the assessee is changed
– Provisions of s. 41(1) not applicable .
Saurashtra Packaging (P) Ltd., CIT v/s.
(2002) 178 CTR 83 =(2003) 259 ITR 520 =132 Taxman 51 (Guj)
87. RETURN
(1) Return of Income –‐ Validity ‐ Whether question as to whether
return is to be filed in a particular Form or not is to be decided by
statutory authority and not by Court – Held, yes ‐ High Court
permitted assessee to file income tax returns in Form Saral 2‐D
instead of Forms ITR – 1 to ITR 8 due to paucity of time and non‐
availably of number of forms – Whether since time for filing return
in prescribed Form had been extended impugned order was to be
set aside and all assesses, who had already filed return in Form
Saral 2‐D pursuant to impugned order were directed to file return
in prescribed Form till extended date.
Income Tax Bar Association, Lucknow, Union of India v/s
(2008)169 Taxman 38 = 4 DTR 173(SC)
(2) Delay – Loss ‐ Carry forward and set off of loss – Application
for extension of time to file return ‐ Assessing Officer refusing
to grant extension but not communicating order to assessee –
Order not effective – Assessee filing return within time
requested – Entitled to carry forward and set off loss.
Dhatu Sanskar (P) Ltd., CIT v/s.
(2007) 292 ITR 135= 209 CTR 39 = 199 Taxation 499 = 163
Taxman 684(Guj)
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312
(3) Notification of new return forms ‐ Validity – It cannot be
accepted that the new return form are so complicated that it is
impossible for a taxpayer to fill up the same – Plea for quashing
Notification No. S.O 762(E), dt. 14 th May, 2007, introducing the
new forms is rejected – Department is however directed to
accept the returns as submitted by the taxpayers, subject to
genuine difficulty.
All Gujarat Federation of Tax Consultants & Ors. V/s. Union of
India & Ors.
(2007)212 CTR 375 = (2008) 301 ITR 167 (Guj)
88. REVISION
(a) ERRONEOUS AND PREJUDICIAL ORDER
(1) Dropping of penalty proceedings by AO – AO having passed cryptic
order dropping proceedings under s. 271C and which order was held
to be erroneous and prejudicial to the interest of Revenue, no
interference was called for with the order of High Court remanding
the matter to the AO requiring him to pass a reasoned order.
Toyota Motor Corporation v/s. CIT
(2008)218 CTR 539 = 173 Taxman 458 = 306 ITR 52 =12 DTR 106 (SC)
(2) Order erroneous and prejudicial to Revenue ‐ Condition
precedent – Two circulars regarding commission received by
LIC agent – Two Commissioners with jurisdiction in same area
having conflicting views on interpretation of circulars – Order
dealing with commission on basis of circulars – Not erroneous
– Commissioner cannot set aside order in revision proceedings
– Income tax Act, 1961, s. 263.
Pankaj Dhirajlal Dhruve, CIT v/s.
(2008) 305 ITR 332 = 4 DTR 101(Guj)
(3) Erroneous and Prejudicial Order ‐ Alleged undervaluation of
immovable property – CWT initiated action under s. 25(2) on
the basis that the property was undervalued in the
assessments having regard to the fact that the firm had
entered into an agreement to sell the same property at a
much higher price at the relevant point of time – Tribunal has
found that the price at which the agreement for sale was
entered into and subsequently the property was sold did not
represent the fair market value of the property on the relevant
valuation dates – This is a finding of fact and is not disputed by
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313
the Revenue – Tribunal was therefore justified in canceling the
order of the CWT under s. 25(2).
Patel , R.R by L/H K.R Patel, CWT v/s.
(2006)200 CTR 90 = 284 ITR 315 (Guj)
(4) Erroneous and prejudicial order – previous year vis‐à‐vis
amalgamation of company – Assessee company assessed for
asst. yr. 1985‐86 for the accounting year from 1 st July, 1983, to
30 th June, 1984 – It ceased to exist on and from 31 st Dec. 1984,
on account of amalgamation with another company and the
income for the six month period ending on 31 st Dec. 1984 was
assessed in asst. yr. 1986‐87 – CIT exercised jurisdiction under
s. 263 on the ground that the income of the accounting period
of six months was assessable in asst. yr. 1985‐86 and not asst.
yr. 1986‐87 – Not justified – CIT has not brought any material
on record to show as to what error was committed by the AO
and even if there was an error how such error was prejudicial
to the interests of the Revenue – Apart from that, without
disturbing the assessment for asst. yr. 1986‐87, the very same
income could not be taxed in asst. yr. 1985‐86 – Thus, CIT
committed an error in exercising jurisdiction under s. 263.
Nuthern (P) Ltd., CIT v/s.
(2006)200 CTR 649 = 192 Taxation 288 = 154 Taxman 326=
284 ITR 396 (Guj)
(5) Erroneous and prejudicial order–View taken by AO permissible
view– Assessee having jointly received a sum under a
declaration from a donor and invested the same, interest
income was assessable in the status of BOI –Assessment could
not be revised by CIT to assessee the income in the status of
AOP.
Shah, S.C & Ors., CIT v/s.
(2005) 193 CTR 226=185 Taxation 335=274 ITR 217 =149
Taxman 25(Guj)
(6) Erroneous and prejudicial order – Claim for exemption under
s. 10(10C) by filing revised return – Petitioner having omitted
to claim exemption under s. 10(10C) owing to ignorance filed a
revised return claiming exemption or Rs. 5,00,000 in respect
of compensation received under voluntary retirement scheme
– AO passed an order under s. 154 allowing the said claim –
CIT assumed jurisdiction under s. 263 holding that the order
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314
under s. 154 was erroneous and prejudicial to the interest of
the Revenue on the ground that the revised return was invalid
as it was filed out of time – Not justified ‐ Return originally
filed by the petitioner was processed under s. 143(1)(ii) –
Intimation under s. 143(1) is not an order of assessment and
could not be revised by CIT – Even assuming otherwise the
same was admittedly issued only on 13 th May, 2002 ‐ Revised
return could have been submitted on or before 31 st March,
2003 and the revised return submitted on 24 th Sept. 2002
was within time limit and valid ‐ Consequently order under s.
263 is quashed and the Revenue is directed to pay the costs
quantified at Rs. 5,000 along with refund to the petitioner
and to recover the same from the respondent CIT.
Koshti, S.R v/s. CIT
(2005) 193 CTR 518 = 146 Taxman 335 =
187 Taxation 107 (Guj)
(7) Erroneous and prejudicial order – Lack of proper enquiry by AO – No
material brought on record to justify the conclusion that there was
an error or omission or failure on the part of the ITO so as to make
the order erroneous and prejudicial to the interest of the Revenue –
Even if there is an omission or mistake with regard to certain items,
it was not proper to set aside the whole assessment – Tribunal
justified in setting aside the CIT’s under s. 263 – CIT v/s. Arvind
Jewellers (2002) 177 CTR (Guj) 546 followed.
Buddhilal Hiralal Rana, CIT v/s.
(2004) 186 CTR 647 = (2002) 125 Taxman 455 (Guj)
(8) Erroneous and prejudicial order – Dissolution of firm vis‐à‐vis
previous year for partners – Firm having Samvat year as its previous
year and assessed as such all along came to be dissolved on and
w.e.f 31st March, 1983 – Exercising discretion under s. 176(1), the
AO assessed the income of the firm for Samvat year 2038 ending
on 15th Nov. 1982 and also for subsequent period from 16th Nov.
1982 to 31st March, 1983 both for asst. yr. 1983‐84 – Assessees being
partners of the said firm were entitled to rely and invoke the
provisions of s. 3(1)(f) and there was no discretion either with the
partners or with the AO regarding determination of previous year in
respect of assessees’ share in the income of the firm ‐ Therefore,
the order passed by the AO making separate assessments of
partners for the period from 16th Nov. 1982 to 31st March, 1983,
for asst. yr. 1983‐84 and not including such income in asst. yr. 1984‐
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315
85 was not erroneous so as to warrant interference under s. 263 –
Further, there is no whisper in the order of the CIT about any
prejudice having been caused to the Revenue on account of said
separate assessments – Thus, Revenue cannot argue that lower
rates of tax was applied to said assessments – Even otherwise,
income of each of the assessees for Samvat year 2038 being higher
than the income for Samvat year 2029, no prejudice was caused to
the Revenue by including such income in asst. yr. 1983‐84 – Order
of CIT rightly cancelled.
Bhanumati & Sons Trust , CIT v/s.
(2004)187 CTR 526=268 ITR 193 =139 Taxman 286 =
182 Taxation 507 (Guj)
(9) Erroneous and prejudicial order – Valuation of closing stock on
dissolution of firm when business was continued – Closing stock has
to be valued at cost or market price, whichever is lower, on the
basis of established principles of commerce and accountancy –
Requirement to apply the market value while valuing the closing
stock in case of dissolution of firm is only applicable when there is
cessation of business and not otherwise ‐ Thus, the order of the AO
accepting the assessee’s valuation of closing stock was not in any
manner prejudicial to the interests of the Revenue, there being no
error in the assessment order – Even if the stand of Revenue is
considered, another view as canvassed by the assessee is also
possible – CIT would not have exercised provisional jurisdiction
under s. 263.
Kwality Steel Suppliers v/s. CIT
(2004) 191 CTR 94 = 271 ITR 40 = 141 Taxman 177 =
(2005) 184 Taxation 503 (Guj)
(10) Erroneous and prejudicial order – Order based on prevailing legal
position – Power of the CIT under s. 263 must be exercised on the
basis of the material that was available to him when he exercised
the power – At that time, the issue whether power subsidy is capital
receipt had been concluded against the Revenue – Fact that the
Supreme Court has subsequently reversed the decision of the High
Court would not justify the CIT in treating the AO’s decision as
erroneous.
G.M Mittal Stainless Steel (P) Ltd., CIT v/s.
(2003) 179 CTR 553 = 263 ITR 255 (SC)
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316
(11) Erroneous and prejudicial order – Valuation of immovable
properties – Tribunal dismissed the assessee’s appeal for the
preceding assessment year holding that the CWT was justified in
directing the WTO to take into account the valuation reports of the
DVO and that the assessment order passed by the WTO on the basis
of the valuation report submitted by the assessee was prejudicial to
the interest of the Revenue – So – called fresh or independent
determination made by the WTO for the subsequent year was
limited only to the renovation of the buildings and did not extend to
fresh or independent determination of the base value of the
properties on the date of commencement of the relevant previous
year – Obviously same value was adopted by the WTO as base value
– This was prejudicial to the interest of the Revenue – Tribunal erred
in interfering with the order of CWT under s. 25(2).
Vinubhai H. Panchal (HUF), CWT v/s.
(2002) 177 CTR 153 = 123 Taxman 960 = 171 Taxation 267=
258 ITR 455(Guj)
(12) Erroneous and prejudicial order – Enquiry by ITO ‐ Finding of fact
given by the Tribunal that the assessee had produced relevant
material and offered explanation in pursuance of the notices issued
under s. 142(1) as well as s. 143 (2) – ITO has come to a definite
conclusion after considering those materials and explanation –
Mere fact that a different view could be taken cannot be a basis for
an action under s. 263 – Tribunal was justified in setting aside the
order passed by the CIT under s. 263.
Arvind Jewellers, CIT v/s.
(2002) 177 CTR 546 = 124 Taxman 615, 171 Taxation 487=
(2003) 259 ITR 502 (Guj)
(13) Erroneous and prejudicial order ‐ Failure to initiate penalty
proceedings by ITO ‐ Assessee did not disclose the capital gains
arising on compulsory acquisition of land in the relevant
assessment year under the belief that the capital gains would be
liable to tax only on receipt of compensation ‐ Capital gains were
disclosed in the return of a later year ‐ On these facts, penalty under
s. 271(1)(c) could not be levied and therefore CIT could not assume
jurisdiction under s. 263.
Manilal Tarachand, CIT v/s.
(2001) 170 CTR 466(GUJ)
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317
(b) S. 263 PREJUDICIAL TO REVENUE
(1) Of orders prejudicial to interest of revenue ‐ Whether where
Assessing Officer has taken a particular view of basis of evidence
produced before him, it is open for Commissioner, in revisional
proceedings under section 263, to take a different view of same
material – Held, no – Whether on facts stated under heading
Business disallowance – Excessive or unreasonable payments when
Assessing Officer had duly verified all details from books and
records and had made no addition in regular assessment
Commissioner was justified in invoking revisional jurisdiction under
section 263 – Held no.
R.K Construction Co. , CIT v/s.
(2008)175 Taxman 165 = 12 DTR 210=(2009) 221 CTR 415 (Guj)
(2) Commissioner ‐ Revision ‐ Revision – Scope of powers – Assessment
order ‐ Subjected to rectification by Assessing Officer subsequently
– Commissioner still has jurisdiction to revise.
Ralson Industries Ltd., CIT v/s.
(2007) 289 ITR 322= 207 CTR 201=158 Taxman 160 =
198 Taxation 97(SC)
(3) Condition precedent – Order passed by Assessing Officer under
section 80HHC relating to export profits deduction when two
views about “profits” were prevalent – Commissioner in 1997
purporting to exercise his power of revision on ground that
order was prejudicial to Revenue – Law prevailing in 1997
should be applied notwithstanding retrospective amendment in
2005 of section 80HHC – Commissioner not entitled to revise.
Max India Ltd., CIT v/s.
(2007) 295 ITR 282 = 213 CTR 266 = 9 RC 710=
(2008) 166 Taxman 188 =204 Taxation 1 (SC)
(4) Orders prejudicial to interests of revenue – Revisional powers under
section 263 can be exercised in case where order was made by
Assessing Officer pursuant to directions issued by IAC under section
144B(4) ‐ Powers under section 263 cannot be invoked when order
taken in revision was already subjected to appeal and appellate
order was made in respect thereof – When two views are possible
and Assessing Officer has taken one view with which Commissioner
does not agree, it cannot be treated as an erroneous order
prejudicial to interest of revenue so as to exercise powers under
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318
section 263 unless view taken by Assessing Officer is unsustainable
in law.
Mehsana District Co‐op. Milk Producers Union Ltd. , CIT v/s.
(2003)130 Taxman 235 = 263 ITR 645 =184 CTR 608 (Guj)
(c) GENERAL
(1) Assessing Officer ‐ Order passed to give effect to direction by
Commissioner – Effect of section 263 – Assessing Officer
cannot consider items not covered by revision –.
Dosani (D.N), CIT v/s.
(2006)280 ITR 275 = 200 CTR 76 = 153 Taxman 13 =
192 Taxation 594 (Guj)
(2) Lack of proper enquiry – Value of gold ornaments not included in the
taxable wealth of the assessee – Tribunal found that the gold ornaments
were declared by the assessee’s wife A in her wealth tax return and were
included in her taxable wealth – Explanation of A that the ornaments
were received on the occasion of her wedding found acceptable by the
Tribunal – There existed no material to suspect the ownership of
ornaments as claimed by A – Provisions of s. 25(2) cannot be invoked by
the authority to confirm or remove vague suspicion as to the ownership
of assets – Thus, assessment made in the case of assessee by not
including the value of said ornaments cannot be held to be erroneous and
prejudicial to the interest of the Revenue – Tribunal was right in setting
aside the order made by the CWT under s. 25(2).
Sumankumar Ishwarlal Parekh, CWT v/s.
(2006)200 CTR 633 = 282 ITR 532 = 192 Taxation 358 (Guj)
(3) Prima facie opinion of CIT – There was clear opinion of CIT – Even
otherwise, when an appeal is preferred against such an order, the
Tribunal is well within its jurisdiction to examine as to whether
the CIT had rightly exercised jurisdiction under s. 263 – Tribunal
found that there was a long gap between the date of acquisition of
shares and their sale and the shares having been shown as
investment in wealth tax returns right from the asst. yr. 1957‐58
profits from sale of shares were chargeable as capital gains and not
business income – Tribunal was correct in holding that CIT was not
justified in his revisional jurisdiction under s. 263 to hold that
income was assessable as business income.
Rewashanker A. Kothari, CIT v/s.
(2006)201 CTR 510 = 283 ITR 338 = 193 Taxation 581
=155 Taxman 214(Guj)
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319
(4) Jurisdiction of CIT – Summary assessment under s. 143(1)(a) –
As per Circular No. RA/86‐87/DI. dt. 26 th Aug. 1987, no remedial
action is necessary in summary case – CIT being bound by the
directions of CBDT could not have exercised power under s.
263.
Vikrant Krimpers, CIT v/s.
(2006) 202 CTR 393= 282 ITR 503 = 193 Taxation 412 (Guj)
(5) Action for recovery of subsidy from the assessee by the
Government initiated and effected by various orders
commencing from 2 nd Dec. 1998 and spreading over a period
of three years ‐ It was only by virtue of letter dt. 5 th Dec.,
2001, that the petitioner was informed to prefer claims on the
basis of revised retention price – In such circumstances,
approach of the CIT in refusing to condone the delay on the
ground that there was no valid explanation for the delay was
not justified.
Gujarat State Fertilizers & Chemicals Ltd. v/s. CIT
(2005)194 CTR 423 =187 Taxation 603=
(2006)283 ITR 149 (Guj)
(6) Dropping of assessment proceedings despite applicability of s.
144 – Assessee company having not filed return in response
to notice under s. 139(2) or during the extended time sought
for, it was mandatory for the AO to make best judgment
assessment under s. 144 – Instead, AO dropped the
proceedings – Action was erroneous in law – Fact that the
assessee had submitted a statement of advance tax and paid
the advance tax indicated that the assessee company was
having positive income – Therefore, the action of the AO
dropping the proceedings also caused prejudice to the
interest of the Revenue – Sec. 263 empowers CIT to take up
for consideration any order passed in any proceeding under
the Act – Thus s. 263 would take within its sweep even the
orders wherein either proceedings are dropped or
proceedings are filed – Therefore, CIT was justified in
exercising his revisional jurisdiction under s. 263.
New Jagat Textile Mills (P) Ltd. v/s. CIT
(2005)195 CTR 110 =189 Taxation 618
(2006) 282 ITR 399 (Guj)
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320
(7) Lack of proper enquiry ‐ CIT has not stated that no
investigation has been carried out by the AO before granting
registration to the assessee firm – In fact, there is no whisper
in the entire order of the CIT that the order granting
registration was erroneous in any manner – Even otherwise,
the finding of fact recorded by the Tribunal that the AO had
made proper investigation before granting registration has
not been shown to be incorrect in any manner whatsoever –
Fact that the CIT did not agree with the view of the AO, by
itself, cannot constitute a valid reason for exercise of
jurisdiction under s. 263.
Arvind Jewellers, CIT v/s.
(2005) 197 CTR 163 = (2006) 150 Taxman 170=
190 Taxation 719 (Guj)
(8) Grant of registration to firm – CIT treated the order of the AO
granting registration to the assessee firm to be erroneous and
prejudicial to the interests of the Revenue on the ground that
the assessee has leased out its building along with
machineries and is not carrying on any business activity –
Tribunal allowed assessee’s appeal holding that there was a
temporary lull in the business and not cessation of business –
There is no finding as to whether this is a case of initial
registration or continuation of registration – Neither of the
authorities have found as to what was the factual position since
the date of constitution of the firm upto the year under
consideration – Question cannot be answered one way or the
other in the absence of these foundational facts – In case only
continuation of registration is sought to be disturbed such an
exercise would not be permissible, unless and until registration
granted for initial year is cancelled ‐ Question is returned
unanswered to the Tribunal to adjust its decision in accordance
with the provisions of law and settled legal position.
U.K Textile , CIT v/s.
(2005)198 CTR 487 (Guj)
(9) Condonation of delay – A person invoking the decision of the
appellate or revisional authority beyond the prescribed period of
limitation is required to show sufficient cause which include
showing that the petitioner was either bona fide pursuing his
remedies or was prevented by sufficient cause from pursuing such
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321
remedies ‐ Whether sufficient cause is made out or not is always a
question of fact and has to be established on record – An
application seeking condonation of delay has also to establish that
there was no negligence or inaction or want of bona fides and that
the right granted under the law to challenge the order was not
abandoned ‐ Rectification orders were passed for reducing the
amount of depreciation by reducing the cost of assets by the
amount of subsidy obtained by the petitioner assessee – In the
period that followed several High Courts including the jurisdictional
High Court took numerous decisions in favour of the assessee on
the same controversy – However, petitioner did not make any
grievance or any attempt to seek any relief before any forum for as
many as 8 years – There is no explanation as to why the petitioner
did not move any revision or rectification application even after the
pronouncement of the jurisdictional High Court ‐ Petitioner did not
show sufficient cause for condonation of delay of more than 8
years – Thus, no interference is warranted with the order of CIT
rejecting the application for condonation of delay.
Vinay Extraction (P) Ltd. v/s. Vijay Khanna , CIT
(2004)190 CTR 495 =140 Taxman 67=(2005)142 Taxation 315 (Guj)
(10) Draft assessment order ‐ Power of Commissioner to revise – Order
passed by Income Tax Officer under directions given by IAC ‐ Can be
revised by Commissioner.
T.N Civil Supplies Corporation Ltd. V/s. CIT
(2003) 260 ITR 82 = 180 CTR 307 = 129 Taxman 69( SC)
(11) Assessee received power subsidy – Assessing Officer treating the
same as capital receipt – CIT cancelling the order under section 263
on the basis of the judgment of the Apex Court in the case of Sahney
Steel & Papers Works Ltd., ‐ Revenue pleading though the judgment
of the jurisdictional High Court in favour of assessee, but since the
judgment of Supreme Court in favour of the revenue CIT entitled to
invoke provisions of section 263 – Held, since order of jurisdictional
High Court in the case of CIT v/s. Dusad Industries, reported in 80
Taxation 62 was never appealed by the department, CIT not
entitled to invoke provisions of section 263 – No mistake in the order
of Assessing Officer who followed the order of jurisdictional High
Court.
Mittal Stainless Steel (P) Ltd., CIT v/s.
(2003) 173 Taxation 363 = 130 Taxman 67(SC)
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322
(12) Jurisdiction of CIT – Order passed by ITO under s. 143(3) r/w s. 144B
– Could be revised by CIT – CIT v/s. East Marine Products (P) Ltd. &
Anr. (1990) 88 CTR (AP) 156 : (1990) 181 ITR 314(AP) concurred
with.
Shreyas Land Development Corpn., CIT v/s.
(2003) 184 CTR 607(Guj)
(13) Record of proceedings – Valuation report received after the
assessment ‐ Could be taken into consideration by the CWT for
deciding whether the assessment was erroneous and prejudicial to
the interest of the Revenue – Therefore, the CWT was justified in
setting aside the assessment made by the WTO and in directing the
WTO to recompute the correct net wealth and tax after
considering the valuation made by the Departmental Valuer.
Lalitchandra M. Patel, CWT v/s.
(2002)177 CTR 247=123 Taxman 682 =258 ITR 232 =
171 Taxation 257(Guj)
(14) Record of proceedings ‐ Scope ‐ It is not necessary that the record
on the basis of which the CIT can take action must be the record of
the concerned assessee – CIT has power to take action under s. 263
in the case of an assessee even on the basis of the records in the
case of other persons.
Arunaben Sumankumar, CIT v/s.
(2002) 177 CTR 470 = 124 Taxman 57 = 171 Taxation 492 =
(2003) 259 ITR 386 (Guj)
(15) Return of income was filed by assessee for both assessment years
and ITO framed assessment determining total income –
Commissioner under section 263 set aside both assessment orders
and on his direction ITO framed fresh assessment – Whether
Tribunal was right in law in setting aside order of Commissioner
under section 263 holding that there was no error or failure in order
of ITO – Held, yes – Whether even if there was an omission or
mistake with regard to certain items, it was not proper as found in
assessment order, to set aside whole assessment ‐ Held, yes.
Budhilal Hiralal Rana, CIT v/s.
(2002) 125 Taxman 455 = (2004) 186 CTR 647 (Guj)
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323
(16) During assessment proceedings, assessee was allowed weighted
deduction under section 35B in respect of 3 items ‐ Deduction was
disallowed in respect of ‘export freight’, ‐ Assessee filed appeal
against disallowance of weighted deduction in respect of ‘export
freight’ – On appeal, Commissioner (Appeals) confirmed ITO’s order
– Later on, Commissioner passed an order under section 263
directing ITO to withdraw deduction allowed by him in respect of 3
items – Whether there was merger of Assessing Officer’s order in
appellate order in respect of three items so as bar Commissioner’s
revisionary jurisdiction under section 263 – Held, no –
Panna Kinitting Industries, CIT v/s.
(2002) 123 Taxman 216 (Guj)
(d) LIMITATION
Commissioner ‐ Revision – Period of limitation – Reassessment of
items other than item sought to be revised by Commissioner –
Period of limitation begins from original assessment – Not from
reassessment in which the item was not dealt with – Doctrine of
merger does not apply – Income Tax Act, 1961, s. 263(1), Expl. (c),
(2).
Alagendran Finance Ltd. , CIT v/s.
(2007) 293 ITR 1 = 211 CTR 69 = 162 Taxman 465
= 201 Taxation 379 (SC)
(e) s. 264
(1) Order prejudicial to assessee – No order prejudicial to the
interest of the assessee can be passed under s. 264 – Impugned
order passed on revision application under s 264 to the extent
it is adverse to the assessee cannot be sustained.
Sanghvi S.J v/s CIT & Anr.
(2008) 219 CTR 138 = 208 Taxation 629 = 10 DTR 98(Guj)
(2) Under s.264– Condonation of delay – CIT rejected the petition
by holding that the revision petition was beyond the period of
the year from the date of passing the order in assessee’s case
under s.143(1) and refused to condone the delay – Not
justified‐Intimation under s.143(1)isnot an order of assessment
considering the scheme of the Act and hence, that could not
have been a ground for refusing to condone the delay.
Koshti, S.R v/s. CIT
(2005)193 CTR 518 = 146 Taxman 335 =
187 Taxation 107 (Guj)
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(3) S. 264 – Restoration application – Revision was dismissed for default
and the matter was not considered on merits ‐ Assessee company
pointing out that its director looking after the income tax matters
was out of station and, therefore, the matter could not be attended
to – CIT should have considered the matter on merits instead of
rejecting the application for restoring the revision application – CIT
directed to hear the revision application on merits and dispose it of
on accordance with law.
Sonam Textile (P) Ltd. v/s. Rawt, S.K.S
(2002)175 CTR 227 =170 Taxation 794=
(2003) 126 Taxman 257 (Guj)
(4) Under s. 264 ‐ Claim for deduction under s. 80HHC ‐ Made for the
first time by way of revision application ‐ Without going into the
merits of the claim, CIT rejected the same merely on the technical
ground that the income was assessed by AO as returned ‐ Not
justified ‐ Order passed by CIT quashed and set aside and CIT
directed to reconsider the revision application on merits.
Ramdev Exports v/s. CIT
(2001)169 CTR 193(GUJ)
(f) PENALTY
Powers of Commissioner – Commissioner cannot direct
Assessing Officer to initiate proceedings – Income Tax Act,
1961, ss. 263, 271.
Suresh G. Shah, Dr. , CIT v/s.
(2007) 289 ITR 110 = 196 Taxation 196(Guj)
(g) POWERS
Powers of Commissioner – Penalty – Commissioner cannot set
aside assessment and direct Assessing Officer to initiate
penalty proceedings – Income Tax Act, 1961, ss. 263, 271.
Parmanand M. Patel , CIT
(2005)278 ITR 3 = 198 CTR 641=149 Taxman 403=
(2006) 190 Taxation 496 (Guj)
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89. RES JUDICATA
Precedent ‐ Binding nature – It is open to a Court of superior
jurisdiction or strength before which a decision of a Bench of
lower strength is cited as an authority, to overrule it – This
overruling would not operate to upset the binding nature of
the decision on the parties to an earlier lis for whom the
principle of res judicata would continue to operate –
However, in tax cases relating to a subsequent year involving
the same issue as in earlier year, the Court can differ from the
earlier view if the case is distinguishable or per incuriam –
Here also, subsequent Bench of superior strength can
declare that the earlier decision does not represent the law, if
it so finds, and the doctrine of res judicata would not apply.
Bharat Sanchar Nigam Ltd. & Anr. V/s. Union of India & Ors.
&
General Manager,BSNL, Asstt. Commr. Trade Tax, Asstt,
Commr. Trade Tax & Ors v/s.
(2006)201 CTR 346 = 152 Taxman 135= 282 ITR 273 (SC)
90. RETROSPECTIVITY
(1) Restrospective amendment creating liability – no liability for
Interest ‐ Extension of service tax on broadcasting – Effect of
retrospective amendment by s. 148 of Finance Act, 2002 –
Assessee became liable to pay service tax as a broadcaster as
a result of amendment by Finance Act, 2002 – Liability was
extended not by way of clarification but by way of amendment,
with retrospective effect – While it is permissible for the
legislature to retrospectively legislate, such retrospectivity is
normally not permissible to create an offence retrospectively
– Liability to pay interest would arise only on default – Such
liability although created retrospectively could not entail
punishment of payment of interest with retrospective effect .
Star India P. Ltd. v/s. CIT
(2006)201 CTR 63(SC)
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326
(2) Amendment with retrospective effect – Amended provision should
itself indicate specifically or by necessary implication that it is to
operate retrospectively – Supreme Court – Reference to larger
Bench – No conflict of decisions.
Varas International P. Ltd., CIT v/s.
(2006)283 ITR 484=204 CTR 120=156 Taxman 202=195 Taxation
441 (SC)
(3) Section 10(28A) ‐ Tobacco Board ‐ Exemptions to – By retrospective
amendment of section 10(20A)(d), income of assessee – Tobacco
Board became exempt from tax for any assessment year with effect
from 1‐4‐1975 or previous year in which Board was constituted ‐
Whether assessments already made would stand set aside with
retrospective effect and assessee would be entitled to refund ‐
Held, yes.
Tobacco Board v/s. CIT
(2002) 122 Taxman 113 (SC)
91. REWARD FOR SEARCH
IT authorities ‐ Reward ‐ Discretion of reward committee vis‐a‐vis
search cases ‐ Scheme formulated by CBDT for grant of reward to
officers and staff of the IT Department stipulated that all cases of
grant of reward would be examined and approved by competent
committee constituted for this purpose and the committee's
discretion shall be final ‐ Admittedly the respondent AO was not a
member of the team which had conducted the search in the case of
an assessee which resulted in the assessment of substantial
additional income ‐ Assessment was made on the basis of seized
material and appraisal report of the investigation wing ‐ Committee
was of the opinion that no contribution was made by the
respondent and he is not entitled to grant of reward ‐ Discretion
of the committee cannot be faulted ‐ Further, the reward amount
was purely ex gratia payment and cannot be treated as a condition
of service ‐ Hence, the matter was outside the purview of the
Central Administrative Tribunal.
Shyam Sundar (B), Secretary, CBDT v/s.
(2001) 170 CTR 8 = 118 TAXMAN 457(SC)
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92. RULES
To be laid before Parliament ‐ Directory ‐Provisions that rules should
be laid before both Houses of Parliament for period of thirty days
directory ‐ Rules need not be re‐laid ‐ Formally before House in new
session where period of thirty days comprised in one or more
sessions.
Vineet Agrawal v/s. Union of India
(2008)146 CC 344(SC)
93. SALARIES ‐ PERQUISITES
(1) Exemption in respect of LTC vis‐à‐vis evidence of actual utilization of
amount – Assessee employer is under no statutory obligation to
collect and examine the supporting evidence to the declaration
submitted by an employee to the effect that he has actually utilized
the amounts(s) paid towards leave travel concession/conveyance
allowance for the purposes of TDS under s. 192.
I.T.I Ltd. , CIT v/s.
(2009)221 CTR 619 = 18 DTR 162(SC)
Larsen & Toubro Ltd., CIT v/s.
(2009) 221 CTR 620 = (2008) 11 RC 530 (SC)
(2) Whether explanation to section 17(2)(iii)I only evisages that
expenditure is in relation to use of any vehicle provided by
employer, there is no qualification as to nature of vehicle or as to
ownership of vehicle – Whether payment made by assessee
employer to its employees by way of reimbursement of conveyance
expenses was tax free perquisite and therefore assessee was not
required to deduct TDS in that behalf .
Reliance Industries Ltd., CIT (TDS) v/s.
(2008) 175 Taxman 367= 14 DTR 150 = (2009) 308 ITR 82
=221 CTR 175 (Guj)
(3) Salary ‐ Profits in lieu of salary ‐ Compensation from
prospective employer after giving up earlier employment –
Till the insertion of cl. (iii) in s. 17(3) w.e.f 1 st April, 2002, by
the Finance Act, 2001, amount received by an assessee from
a person who was not his employer, either before or after the
cessation of employment was not taxable under s. 173(3) as
“profits in lieu of salary” – Assessee who was employed with
IIM resigned as he was negotiating an assignment with M Ltd.
– He received compensation from M Ltd. in consideration of
making himself readily available for an assignment with that
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company – Assessee was neither employed with IIM nor with
the payer on the day he received the payment – Hence, said
compensation was not taxable as profits in lieu of salary.
Bhagwatilal G. Shah v/s. CIT
(2005)196 CTR 8 =146 Taxman 412= 277 ITR 277 =189 Taxation
594(Guj)
94. SCIENTIFIC RESEARCH EXPENDITURE
(1) Assessment year 2001‐02 – Section 35(2AB) nowhere suggests that
date of approval of research and development facility will be cut off
date for eligibility of weighted deduction under this section on
expenses incurred from that date onwards, once facility is approved
entire expenditure so incurred on development of research and
development facility has to be allowed for weighted deduction .
Claris Life sciences ltd., CIT v/s.
(2008)174 Taxman 113 =16 DTR 57 (2009) 221 CTR 301 (Guj)
(2) Scope of section 35 – Not necessary that capital asset should be
used for scientific research in previous year ‐ Expenditure on
construction of building for scientific research – Building not used
in previous year ‐ Not relevant – Expenditure deductible under
section 35 – Exemption provision ‐ Liberal construction.
Gujarat Aluminium Extrusions Pvt. Ltd., CIT v/s.
(2003) 263 ITR 453 = 176 Taxation 542 =184 CTR 297 =
133 Taxman 542 (Guj)
95. SEARCH AND SEIZURE
(a) AUTHORISATION UNDER s. 132(1)
Validity – Assessee being a non trading corporation possession of
money, bullion, jewellery or other valuable article or thing was
ruled out and there being no summons or notice which the
assessee failed to respond, none of the conditions prescribed under
s. 132(1) were satisfied and therefore warrant of authorization is
quashed, so also consequent notice under s. 158BC.
Suvidha Association v/s. LR Meena / ADIT (Inv)
(2008) 220 CTR 382 = 207 Taxation 148 = 9 DTR 209(Guj)
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329
(a) BLOCK ASSESSMENT
(1) Deduction under ss. 80‐I and 80‐IA – In the light of provisions of s.
158BB as amended by the Finance Act, 2002 retrospectively w.e.f 1st
July, 1995, no fault can be found with the impugned order of the
Tribunal holding that the assessment is entitled to claim deduction
under s. 80‐I or s. 80‐IA in block assessment.
Suman Paper & Boards Ltd., CIT v/s.
(2009) 221 CTR 781(Guj)
(2) In view of the fact that the proviso to s. 113 was introduced by the
Finance Act, 2002 w.e.f 1st June, 2002 i.e with prospective effect
and having regard to the principles of law that the taxing statute
should be construed strictly and, ordinarily, should not be held to
have any retrospective effect, the question as to whether the said
proviso is clarificatory and/or curative in nature and retrospective is
referred to be considered by a larger bench.
Vatika Towership (P) Ltd., CIT v/s.
(2009) 221 CTR 409 = 178 Taxman 322 = 17 DTR 353(SC)
(3) Conditions precedent for making block assessment – Are
mandatory and should be satisfied – Search of premises – Block
assessment of person other than one whose premises were
searched – Satisfaction that such other person had undisclosed
income and to transmit material to Officer having jurisdiction –
Failure – Assessment on other person not valid – Income Tax
Act, 1961, ss. 132, 158BC, 158BD.
Manish Maheshwari v/s. Asst. CIT
Indore Construction (P) Ltd. v/s. CIT
(2007) 289 ITR 341= 208 CTR 97 = 8 RC 455 =
199 Taxation 284 = (2008) 204 Taxation 205 (SC)
(4) Assessee shareholder, partner and beneficial owner in
companies and firms– Search resulting in diary being seized –
Seizure of diary leading to assessment of undisclosed income
as deemed dividends – Valid – Income
Tax Act, 1961, s. 158BC.
Mukundray K. Shah, CIT v/s.
(2007) 289 ITR 433 = 209 CTR 97= 160 Taxman 276 =
200 Taxation 272 (SC)
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330
(5) Requisition – Seizure of cash by police – No satisfactory
explanation regarding cash – Requisition by I.T authorities –
Amount to be handed over to I.T authorities – Income Tax Act,
1961, ss. 131, 132A ‐
Rajiv Agrawal or his successor in office v/s. State of Gujarat.
(2007)290 ITR 449 = (2006) 202 CTR 80 = 154 Taxman 172 =
193 Taxation 414 (Guj)
(6) Search and intimation of block assessment proceedings – Gold,
diamonds, jewellery and other ornaments seized – Writ
petition – High Court quashing proceedings and directing
Department to return items seized with interest on value of
items seized – Supreme Court – Appeal by Department ‐
Supreme Court not deciding whether interest was payable –
Department directed to pay costs in lieu thereof – Income Tax
Act, 1961, ss. 132, 158BC.
Diamondstar Exports Ltd., Director General of Income
Tax v/s.
(2007)293 ITR 438(SC)
(7) Requisition under s. 132A ‐ Seizure of cash by police – Applicant, Dy.
Director of IT, made requisition under s. 132A claiming the seized
amount on the basis that the said amount is unaccounted money ‐
Lower Court committed error in ignoring the provisions of s. 132A
and handing over the seized amount to respondent No.2 rejecting
the claim of the applicant – Impugned order passed by the lower
Court is quashed and set aside – Police authority is ordered to hand
over the seized amount to the applicant.
Rajiv Agrawal, Dy. Director of IT, or his Successor in office v/s.
State of Gujarat & Anr.
(2006) 202 CTR 80 = 154 Taxman 172 = 193 Taxation 414=
(2007) 290 ITR 449 (Guj)
(8) Section 132 of the Act – Validity of – Writ challenging the
search & seizure operation – Held there was reasonable &
credible information & reason to believe that income had
been suppressed – Search held valid Income tax Act, 1961,
Section 132.
Harvest Gold Foods (India) Pvt. Ltd. v/s. UOI & Ors.
(2006) 194 Taxation 511 (Guj)
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(9) Block assessment – Proceedings under s. 158BD – AO having
jurisdiction over the person searched having not recorded
satisfaction that income unearthed belonged to person other
than searched and having not handed over books of account
etc. to the AO having jurisdiction over such other person,
provisions of s. 158BD could not be invoked in respect of such
other person – Reliance on ss. 158B(b) and 158BA is
misplaced – Further, there being no such issue involved in
original assessment proceedings, same could not be raised
while making fresh assessment on remand by CIT(A).
Nitin P. Shah alias Modi v/s. Dy. CIT
(2005)194 CTR 306 =276 ITR 411=146 Taxman 536 =187
Taxation 390 (Guj)
(10) Authorization under s. 132(1) – Reason to believe – Sum of Rs.
4.5 lacs found at the time of search of the premises of p, a partner
of firm JP ‐ P explained that the amount belonged to the firm –
Upon recording the facts, Addl. Director of Income Tax
(Investigation) issued authorization for carrying out search at the
residence of the petitioners who are also partners of the firm JP –
Not justified – There was nothing to show as to why he believed
that incriminating documents would be found at the residence of the
petitioners – Moreover, it was open to the respondent authorities to
conduct survey at the premises belonging to the firm as necessary
order under s. 133A had already been passed – Condition precedent
under s. 132 (1) not satisfied ‐ Simply because a sum of Rs. 4.5 lacs
was found at the residence of P and simply because he is one of
the partners of JP, there was no justifiable reason to issue
authorization for search at the residence of the petitioners.
Jignesh Farshubhai Kakkad v/s. Director of IT(Inv.) & Ors.
(2003) 184 CTR 220 = 176 Taxation 590 = 264 ITR 87(Guj)
(11) Block assessment ‐ Stay – All proceedings stayed except that
the AO may pass orders in regard to the block assessment as
directed by the Tribunal and the CIT(A) may hear and decide the
appeal filed by the assessee in respect of asst. yr. 1995‐96 –
Orders of the AO and the CIT(A) not to be enforced except after
obtaining the orders of the Court.
Block assessment – Validity – Block assessment order passed
pursuant to the interim order of the Court set aside and Tribunal
directed to hear the assessee’s appeal against the earlier block
assessment order and dispose of the same without being influenced
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by any observations made in its earlier orders and the order of the
High Court – Also, CIT(A) directed to hear and dispose of assessee’s
appeal against the regular assessment order without taking into
consideration the observations contained in the aforesaid order of
the High Court.
Shaw Wallace & Co. Ltd. v/s. CIT & Ors.
(2003) 180 CTR 106(SC)
(12) Officer heading search party – Acting also as Assessing Officer and
determining tax liability – That mere fact alone does not justify
apprehension of blas ‐ Assessment valid .
Vipan Kumar Jain, Union of India v/s.
(2003) 260 ITR 1 = 181 CTR 24 = 129 Taxman 59 =
174 Taxation 781 (SC)
(13) Block Assessment – Condition precedent ‐ Valid search – Information
providing reason to believe that person in possession of money or
other asset will not disclose it – Mere information from CBI that
cash was found in possession of individual ‐ Not “information” for
purposes of authorizing search ‐ Search based on such information
and consequent block assessment not valid.
Ajit Jain , Union of India v/s.
(2003) 260 ITR 80 = 129 Taxman 74(SC)
(14) Block assessment ‐ Common authorization ‐ No illegality ‐
Authorising Officer retaining seized documents and books of account
beyond period of fifteen days – Illegality does not vitiate evidence
collected during search – Search operation against petitioners and
notice issued under section 131(1A) – Valid – Post search – No
illegality.
Madhupuri Corporation v/s. Prabha Jha
(2002) 256 ITR 498 = 166 Taxation 704 = 125 Taxman 309 (Guj)
(15) Release of accounts books – On search, books of accounts seized in
January, 1999 – Assessee applying for release of books – Books not
released – Held, Department to keep photocopies of the papers
seized, duly authenticated both by the assessee and the
Department and release the books – Assessee directed to produce
the books whenever requiring by the Assessing Officer.
A to Z Gruh Vastu Bhandar v/s. Director of Income Tax (inv.)
(2002) 166 Taxation 78 (Guj)
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(16) Undisclosed income ‐ Block assessment ‐ Material showing
undisclosed income of a person other than person against whom
search was conducted ‐ Action under section 158BD justified ‐
Premjibhai and Sons v/s. Joint CIT
(2001) 251 ITR 625(GUJ)
(17) Notice under section 158BD ‐ Initiation of proceedings against a
person other than the person raided ‐ Not a separate and
independent proceeding ‐ Part of search operation ‐ No separate
jurisdictional fact need be established ‐
Premjibhai and Sons v/s. Joint CIT
(2001) 251 ITR 625(GUJ)
(18) Undisclosed income ‐ Material showing undisclosed income of a
person other than person against whom search was conducted
sufficient ‐ No requirement that papers of "other person" should be
seized ‐ Search against two persons ‐ Materials recovered in search
disclosing assessee converting unaccounted money to legally
accounted money by making bogus sales ‐ Initiation of
proceedings for block assessment of assessee ‐ Justified ‐
Rushil Industries Ltd. v/s. Harsh Parekh
(2001)251 ITR 608 = 162 TAXATION 335(GUJ)
(19) Section 158BC of the Income Tax Act, 1961 read with section 64 of
the Finance (No. 2) Act, 1997 ‐ Block assessment in search cases ‐
Procedure for ‐ Assessment year 1997‐98 ‐ During search of
residence in case of petitioner's father, revenue having come to
know about a bank locker in names of petitioner, his father and
other family members, passed prohibitory orders under section
132(3) in respect of materials inside locker ‐ Subsequently, while
search warrants were signed against petitioner, latter made a
disclosure under VDIS 1997 of cash lying in locker ‐ Assessing
Officer, however, issued notice for block assessment in
petitioner's case ‐ High Court on ground that once prohibitory
order was passed and issued in respect of amount lying in locker,
search proceeding could be said to have been initiated in respect of
said amount under section 132 and petitioner could not be
allowed to disclose concealed income of his father or in case of any
other member of his family, dismissed petitioner's prayer to quash
notice under section 158BC ‐ Whether notice issued under section
158BC should be stayed ‐ Held, no ‐ Whether since subject matter of
writ petition was notice issued under section 158BC and not
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proceedings before Settlement Commission, question of
Settlement Commission being bound by observation of High Court
did not arise ‐ Held, yes.
Nilesh Hemani v/s. CIT
(2001) 117 Taxman 360(SC)
(20) Search and Seizure ‐ Common Authorisatin ‐(a)Authorisation under
s. 132(1) ‐ Common authorisation for several persons ‐ As per
provisions of s. 2 of the General Clauses Act, 1987, singular
includes plural ‐ There is no prohibition against issuance of
common authorisation when the competent authority has reason
to believe that a number of persons are involved in
interconnected transactions.
(b) Reason to believe ‐Authorisation under s. 132(1) ‐ Reason to
believe ‐ Satisfaction note prepared by Dy. Director was approved
by Addl. Director and Director ‐ Petitioners were dealing with large
sums of money running into crores of rupees and still had not filed
any return ‐ Thus, there was material available on the record of
the respondents to arrive at a prima facie satisfaction that the
petitioners had undisclosed income or property ‐ Contention that
there was non‐ application of mind by the authority issuing the
authorisation for search against the petitioner cannot be
accepted.
(c)Retention of seized books beyond 15 days ‐ Deliver of seized
books to jurisdictional AO ‐ Retention by authorised officer for
more than 15 days ‐ No prejudice is shown to have been caused to
the petitioners by retention of the documents and books of
accounts for a few days beyond the period of 15 days ‐ Even
assuming that the provisions of s. 132(9A) are applicable in the
instant case, retention of the documents and books of accounts by
the authorised officer for 15‐20 days beyond the period of 15 days
stipulated in s. 132(9A) would not vitiate the notices issued by the
AO under s. 131(1A) and under s. 158BC.
(d)Post search irregularity ‐Photocopying of seized documents ‐ Seals
were placed on the bunch of papers in such a manner that no
addition or deletion from the bunch could be made but
photocopying was possible without removing the seal ‐ No
irregularity was involved in taking Photostat copies of said
documents for the purpose of investigation.
Madhupuri Corpn. v/s. Prabhat Jha. Dy. Director of IT(Inv.)
(2001)171 CTR 593(GUJ)
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(21) Assessing Officer wanted to retain seized books of account and
other material beyond prescribed period ‐ Reasons given by
Assessing Officer was that notices under section 158BC had been
issued and revenue authorities had to complete assessment on or
before 31‐12‐2001 and thereafter it required a further period of
three months for completion of consequential procedures ‐ Whether
there was any logic behind retention of books of account and
other material till entire block assessment was over ‐ Held, no ‐
Hemant Champaklal Shah v/s. Khan (S.S)
(2001) 118 TAXMAN 500(GUJ)
(c) GENERAL
(1) Pursuant to a search conducted at premises of assessee,
department seized certain jewellery and ornaments belonging
to assessee ‐ On writ, High Court held that search and seizure
was invalid and directed department to pay interest to
assessee at rate of 8 per cent per annum on value of illegally
seized article as a compensation and quantified same at Rs.
84.68 lakhs – Department, however, after a long delay
returned seized article but without interest on ground that
assessee had made no prayer in writ petition for payment of
interest ‐ Whether even if question of payability of interest
would not be examined, then also department was liable to
compensate assessee at least by way of costs as search and
seizure was illegal and loss suffered by assessee was further
aggravated by delay caused by department in complying with
High Court’s decision.
Diamondstar Exports Ltd.. DCIT
(2006)156 Taxman 299 (SC)
(2) Books of account, documents, money etc. found in the possession of
any person – Presumption that they belong to such person, contents
are true, etc. – Nature of ‐ Rebuttable presumption – Scope of –
restricted to summary assessment for retention of sufficient assets
to meet tax and penalty – Presumption does not extend to regular
assessment thereafter – Income tax Act, 1961, ss. 132(4A), (5), 132B,
143, 278D – Presumptions – Different kinds of.
Metrani (P.R) v/s. CIT
(2006) 287 ITR 209 = 206 CTR 290 = 157 Taxman 325=
(2007) 197 Taxation 8 (SC)
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(3) General – Whether where necessary orders to have survey of
business premises of firm ‘J’ of which petitioners were partners had
already been passed, there was no justifiable reason for having a
search at residences of petitioners – Held, yes.
Farshubhai Prabhurambhai Kakkad v/s. Director of Income Tax .
(2003)132 Taxman 350 =264 ITR 87=(2004)178 Taxation 138 (Guj)
(4) General ‐ Order under section 132(5) operates in a different field
and is not final and conclusive for all purposes – Approval order
under section 132(5) cannot be treated as a direction and has
nothing to do with an assessment order under section 143(3).
Harjivandas Juthabhai Zaveri, Dy. CIT v/s.
(2003)132 Taxman 923 = (2002) 258 ITR 785 (Guj)
(d) REASSESSMENT
Reassessment under s. 147 – Once assessment has been framed
under s. 158BA in relation to undisclosed income of the block period
as a result of search, AO cannot issue notice under s. 148 for
reopening such assessment.
Cargo Clearing Agency v/s Jt. CIT
Kapurchand Kakaram Bansal v/s. Dy. CIT
(2008)218 CTR 541= 307 ITR 1 =207 Taxation 586= 12 DTR 50(Guj)
(e) SURCHARGE LIABILITY
Block assessment – Section 4 applies in addition to provisions in
Chapter XIV‐B – Provisions of section 113 as well as provisions of
relevant Finance Act apply – Surcharge in addition to income tax
leviable on undisclosed income – Proviso to section 113 clarificatory
– Finance Act, 2001 – Income tax Act, 1961, ss. 4, 113, 132 158BA,
158BB, 158BH.
Suresh N. Gupta, CIT v/s.
(2008)297 ITR 322 = 214 CTR 274=166 Taxman 313 = =204 Taxation
20 = 1 DTR 354(SC)
96. SETTLEMENT COMMISSION
(a) ABATEMENT OF PROCEEDINGS – STAY
(1) Stay ‐ abatement of settlement petition pending before Settlement
Commission stayed by High Court till further orders.
Suraj Corporation v/s. Union of India & Ors
(2008) 217 CTR 73 = 7 DTR 156(Guj)
(2) Object of provisions – Speedy disposal – Not reduction in
statutory liability – Income Tax Act, 1961, s. 245C. ‐
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Preconditions ‐ Voluntary and full and true disclosure of
income ‐ Order of settlement – Whether obtained by fraud or
misrepresentation of facts ‐ Proceedings for such issue need
not necessarily be initiated by Settlement Commission –
Department having material entitled to move commission –
Bench hearing such issue – Does not review or sit in appeal
over decision of earlier bench that passed settlement order
– Income Tax Act, 1961, ss. 245C, 245D(4), (6), 245‐I ‐ Scope of
powers ‐ Income Tax Act, 1961, ss. 245D(4), (6), 245F.
Om Prakash Mittal, CIT v/s.
(2005) 273 ITR 326 = 143 Taxman 373 = 194 CTR 97 =
186 Taxation 177 (SC)
(3) Proceedings for settlement of cases – Whether provisions
relating to charge of interest for default in furnishing return,
delay in payment or deferment of Advance Tax are applicable
– Supreme Court – Matter referred to larger bench – Income
Tax Act, 1961, ss. 154, 234A, 234B, 234C, Ch. XIX‐A.
Rectification of mistakes – Interest not levied in original
proceedings – Whether Settlement Commission can resort to
rectification for levying interest for default in furnishing
return, delay in payment or deferment of Advance Tax –
Supreme Court – Matter referred to larger bench – Income Tax
Act, 1961, ss. 154, 234A, 234B, 234C.
Brij Lal v/s. CIT
(2005)279 ITR 432 =199 CTR 716=(2006) 150 Taxman 106=
192 Taxation 213 (SC)
(4) Power and procedure of –– Settlement Commission cannot issue
circulars which power is vested in CBDT under section 119, but it is
certainly an Income Tax Authority to confer benefit available to
assessee under circular and for that purpose, section 245F is wide
enough to enable Commission to rectify order and presence of
provisions like section 254(2) in Chapter XIX‐A, may not be
considered to be indispensable – If one assumes that Settlement
Commission is not an income tax authority for purpose of exercising
powers under section 154, it is certainly an income tax authority to
give effect to judgment of Supreme Court which says that but for
circular Settlement Commission has no power to waive or reduce
interest under sections 234A, 234B and 234C and if such powers
are exercised by Settlement Commission within four years from
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date of original order passed under section 245D, same can
certainly be in accordance with provisions contained in section 154.
Sanjaybhai R. Patel v/s. Assessing Officer
(2004) 135 Taxman 210 = 187 CTR 583 =180 Taxation 429 (Guj)
(5) Return – Advance Tax – Powers of Settlement Commission – Power
to rectify mistakes in its order ‐ Reduction or waiver of interest
under sections 234A, 234B and 234C by Settlement Commission –
Mistake which can be rectified by Settlement Commission – Income
Tax Act, 1961, ss. 116, 234A, 234B, 234C, 245D, 245F.
AOP Sanjaybhai R. Patel v/s. Assessing Officer/Asst. CIT
(2004)267 ITR 129(Guj)
(6) Chargeability and computation – Computation consequent upon
settlement of case by Settlement Commission – Settlement
Commission assumes jurisdiction to deal with the matter after it
decides to proceed with the application made under s. 245C and
continues to have the jurisdiction till it makes an order under s. 245D
– Contention that there is no requirement to pay interest under s.
234B as no points of terminus have been fixed is untenable because
the levy is mandatory – Equally, the contention that no interest is
chargeable for that portion of income which was determined by the
Commission and was not disclosed before the AO has no substance –
Interest under s. 234B has to be charged for the period beginning
from the first day of April next following the relevant financial year
upto the date of Settlement Commission’s order under s. 245D(4) on
the consolidated income i.e both disclosed and undisclosed income
– There is no question of charge of interest on interest.
Damani Bros., CIT v/s. & Hindustan Bulk Carriers, CIT v/s.
(2003) 179 CTR 362 = 259 ITR 475(SC)
(7) Effect on assessment order and recovery proceedings – Jurisdiction
of Settlement Commission vis‐à‐vis IT authorities – IT authorities
are free to proceed in the prescribed manner till the Settlement
Commission decides to proceed with the petition – Contention that
before the Commission decides to proceed with the matter, it
exercises the functions of the IT authority and after deciding to
proceed with the petition it exercises dual functions as the
Commission and the IT authority is not tenable – Return filed is in
respect of disclosed income while the petition before the
Commission is in respect of undisclosed income ‐ Therefore, the
situation is different till the Commission decides to proceed with
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339
the matter ‐ Fact that for the purpose of computation of taxes there
is a requirement to club both the disclosed and undisclosed income
does not empower the Commission to deal with the disclosed
income before deciding to proceed with the petition.
Damani Bros. , CIT v/s. & Hindustan Bulk Carriers, CIT v/s.
(2003) 179 CTR 362 = 259 ITR 475(SC)
(8) Power of Settlement Commission – Waiver or reduction of interest
under s. 220(2) – Waiver or reduction of interest under various
provisions is hedged with certain conditions – If these conditions
are satisfied the Settlement Commission has the power to direct
waiver or reduction – Secs. 234B, 245D(2C) and 245DA(6A) operate
in different fields – Therefore, when interest is charged in respect of
the said provisions it does not amount to double levy of interest, as
the infractions are different ‐ Thus, there is no scope for charging of
interest on interest.
Damani Bros. , CIT v/s. & Hindustan Bulk Carriers, CIT v/s.
(2003) 179 CTR 362 = 259 ITR 475(SC)
(9) Delay in furnishing return, default or deferment in paying Advance
Tax – Interest mandatory – Settlement Commission – No power to
waive or restrict interest – Income Tax Act, 1961, ss. 234A, 234B,
234C, 245D(4).
Sant Ram Mangat Ram Jewellers, CIT v/s.
(2003) 264 ITR 564 = (2004) 186 CTR 115 =181 Taxation 1 =
134 Taxman 262 (SC)
(10) Settlement of cases – Settlement Commission granting immunity
from prosecution “in respect of matters arising out of settlement” –
Effect ‐ Total immunity in regard to fictitious transaction – Not
confined only to specific assessment year ‐ High Court ‐ Not
entitled to declare order granting immunity as illegal or void.
Nirmal and Navin P. Ltd. v/s. D. Ravindran
(2002) 255 ITR 514 = 175 CTR 407 = 123 Taxman 540 (SC)
(11) Order of Settlement Commission – Payment of interest – Question
relating to determination of starting point in regard to payment of
interest arising from the order of Settlement Commission referred
to a larger Bench.
Hindustan Bulk Carriers, CIT v/s.
(2002) 177 CTR 531 = 258 ITR 399 (SC)
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340
(12) Nature of ‐ Quasi judicial body ‐ Not executive authority like CBDT
‐ Jurisdiction and powers ‐ Interest for delay in filing return ‐
Interest for deficiency or deferment of Advance Tax ‐ No power to
reduce or waive ‐ Waiver or reduction permissible only under
circular of CBDT in cases and under conditions prescribed ‐
Anjum M.H Ghaswala, CIT v/s.
(2001) 252 ITR 1 = 171 CTR 1 = 119 TAXMAN 352(SC)
97. SPECIAL AUDIT
(1) Accounts – Assessment ‐ Direction to get accounts audited by
accountant – Notice of hearing to assessee whether necessary before
making order – Supreme Court – Matter referred to larger Bench –
Income Tax Act, 1961, s. 142(2A) ‐
Sahara India Financial Corpn Ltd. v/s. CIT
(2007) 289 ITR 473 = 209 CTR 20 =161 Taxman 216 = 199
Taxation 165 (SC)
(2) Special audit of accounts – Assessment‐ Scope of – Nature of
Assessing Officer’s and Commissioner’s responsibility – Order entails
civil consequences ‐ Assessee has to be given reasonable
opportunity of being heard before passing order – Income tax Act,
1961 (before and after June 1, 2007) s. 142(2A), (2B), (2C), (2D), (3).
Sahara India (Firm) v/s. CWT
(2008)300 ITR 403 =169 Taxman 328 =216 CTR 303 =
206 Taxation 180 = 7 DTR 27 (SC)
98. STOCK EXCHANGE
Defaulting members – Defaulters’ Committee constituted in terms
of bye‐laws of the Bombay Stock Exchange would apply the assets
other than card money belonging to the defaulting member
towards the dues and payments of the members on a pro rata basis
whereafter the dues of the non‐member can be disbursed – While
doing so, however, such claims can be determined only having
regard to the cut‐off date which must be prescribed by the
Governing Board in terms of cl. 7 of bye‐law 343 – Card money
must be disbursed having regard to the priority clause contained in
r. 16 in which event, upon discharge of the dues of the Exchange
and the clearing house, the same has to be distributed to the dues
of the members and non‐members ‐ There does not exist any
distinction between a member and a non member in terms of r. 16
and if the card money available at the hands of Exchange is not
sufficient to satisfy all the claims, the same has to be distributed on
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341
a pro rata basis ‐ In the instant case, Exchange has taken varying
stands as regards the sufficiency of the amount in its hands
wherefrom the claim of the respondents could be satisfied ‐ Cut off
date for entertaining the claims of the members and non‐members
not disclosed – Matter restored to the High Court to consider the
claims of the respondents afresh.
Bombay Stock Exchange v/s. Jaya I. Shah & Anr.
(2003) 185 CTR 36(SC)
99. SUIT ‐ WITHOUT NOTICE
Search & Seizure ‐ Suit against public officer in respect of act done
under warrant of authorisation ‐ Requirement as to notice
mandatory ‐ Urgent and immediate relief sought against action of
public officer ‐ Opportunity to be heard to be granted to public
officer before granting relief ‐ Provisions in section 80, C.P.C,
Mandatory ‐ Suits filed without notice ‐ Bar of suits against
proceedings under Income Tax Act ‐ Suits not maintainable ‐
injunctions granted without giving opportunity to be heard ‐
Liable to be quashed ‐
Natwerlal M. Badiani , Union of India v/s.
(2001) 250 ITR 641(GUJ)
100. SUPREME COURT – DECLARATION OF LAW ART. 141
(1) Binding nature ‐ Has to be founded on reasons – Dismissal of appeal
on technical ground that necessary party not impleaded – Has no
effect on merits of matter decided by High Court – Constitution of
India, art. 141.
Shamugavel Nadar (S) v/s State of Tamil Nadu
(2003)263 ITR 658 = 185 CTR 593 =(2004) 179 Taxation 409 (SC)
(2) Review ‐ Supreme Court entertaining review petition and delivering
judgment – Effect ‐ Earlier judgment erased – There are no two
judgments – The earlier judgment cannot be applied for earlier
period after judgment rendered on review.
Murthy (M.A) v/s. State of Karnataka
(2003) 264 ITR 1= 185 CTR 194 = (2004) 178 Taxation 397 (SC)
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342
101 SUR TAX
Company – Computation of capital – Assessee acquiring other
companies – Consideration less than book value of assets –
Difference treated as other reserves – No intangible asset or
revaluation of asset – Amount is “reserve” and includible in
capital – Companies (Profits) Surtax Act , 1964, Sch. II, R. 2,
Expl. 2.
George Williamson (Assam) Ltd. V.s, CIT
(2005) = 278 ITR 102 =198 CTR 106 = 148 Taxman 252=
(2006) 191 Taxation 4 (SC)
102 TAX
COMPUTATION PROVISION FAILS
Where computing provision fails tax itself fails.
R & B Falcon (A) Pvt. Ltd. V/s. CIT
(2008) 301 ITR 309 = 216 CTR 289 = 169 Taxman 515 =
206 Taxation 241 = 6 DTR 313 (SC)
PRIORITY
Precedence over other liabilities – Offences relating to transactions
in securities – Special Court – Discharge of tax liabilities of notified
person – Scope of powers – Principles relating to – Special Court (
Trail of Offences Relating to Transactions in Securities) Act, 1992, s.
11(2)(a).
State Bank of India, Dy. CIT
(2009)308 ITR 1 =176 Taxman 116 =221 CTR 14 = 209 Taxation 1=
(2008) 16 DTR 163(SC)
103 TAX OR FEE
Imposition of administrative charges – Is tax and not fee.
Gupta Modern Breweries v/s. State of Jammu and Kashmir.
(2007) 8 RC 688(SC)
(104) TAX AVOIDANCE
(1) Creation of trusts – Question regarding colourable device having not
beenreferred, contention as to tax avoidance could not be allowed to
be raised.
Sinivali Trust , CIT v/s.
(2004) 187 CTR 619 = 267 ITR 165=180 Taxation 100 (Guj)
342
343
(2) Charge of tax – Tax avoidance – Not only is principle in IRC v. Duka of
Westminster 1936 AC 1 alive and kicking in England , but it also
seems to have acquired judicial benediction of the Constitutional
Bench in India, notwithstanding the temporary turbulence created in
wake of McDowell & Co. Ltd. V/ CTO (1985) 154 ITR 148/22 Taxman
11(SC) – Observations of Shah, J., in CIT v. A. Raman & Co. (1968) 67
ITR 11(SC) are very much relevant even today – In McDowell’s case
(supra) Court has neither dissented from nor overruled decision of
Privy Council in Bank of Chettinad Ltd. V. CIT (1940) 8 ITR 522 – From
Duke of Westminister’s case (supra) to Bank of Chettinad’s case
(supra) to Mathuram Agrawal v. State of Madhya Pradesh (1998) 8
SCC 667, despite hiccups of McDowell, law had remained same – If
Court finds that notwithstanding a series of legal steps taken by an
assessee, intended legal result has not been achieved, Court might
be justified in overlooking intermediate steps, but it would not be
permissible for Court to treat intervening legal steps as non est
based upon some hypothetical assessment of ‘real motive’ of
assessee.
Azadi Bachao Andolan, Union of India v/s.
(2003) 132 Taxman 373 =263 ITR 706 =184 CTR 450 =
177 Taxation 775 (SC)
105. TAX CLEARANCE CERTIFICATE
Existing liability‐Issuance of Income Tax clearance certificate could
not be with ‐ held only on the ground that some liability may be
fixed on the petitioner in future ‐ Petitioner's property placed
under provisional attachment under s. 281B and it has already
offered its another property having substantial value for provisional
attachment in lieu of former property ‐ Respondents directed to
issue Income Tax clearance certificate after releasing the
provisional attachment over the former property.
Ahmedabad South Indian Association Charitable Trust v/s. DY. CIT
(2001) 170 CTR 128 = 117 Taxman 413(Guj)
343
344
106. TAX DEDUCTION AT SOURCE
(1) Challenge to show cause notice vis‐à‐vis accrual of capital gains in
India in respect of transaction carried out abroad – In the absence
of relevant agreements on record question regarding the jurisdiction
to issue the show cause notice to the assessee treating it as an
assessee in default for failure to deduct tax at source in respect of
acquisition of shares of Indian company by assessee non resident
company directed to be determined by the authority concerned as
a preliminary issue.
Vodafone International Holdings B.V v/s. Union of India & Anr.
(2009) 221 CTR 617 = 18 DTR 234(SC)
(2) Interest – Duty to deduct tax at time of payment – Company – Loans
taken in individual capacities by directors ‐ Cheques taken by them
in name of company and transferred to their accounts on same day
– Repayment of loan and interest routed through company –
Company bound to deduct tax at source – Income tax Act, 1961, ss.
194A(1), 201(1A) ‐
Century Building Industries P. Ltd., CIT v/s.
(2007)293 ITR 194 = 163 Taxman 188= 211 CTR 292=
(2008) 202 Taxation 190 (SC)
(3) Rent ‐ Warehousing charges – Assessee deducting tax at 2 per
cent. Treating them as contractual payments – Assessing
Officer holding that payment was rent and passing order for
recovery of difference in tax and interest – Payee paying full
tax on warehousing charges – Appellate Tribunal – Decision
that assessee has only to pay interest – Valid – Income Tax Act,
1961, ss. 194C, 194‐I, 201(1A) – Circular No. 275/201/95 – IT(B)
dated January 29, 1997.
Hindustan Coca Cola Beverage P. Ltd. v/s. CIT
(2007) 293 ITR 226 = 163 Taxman 355 = 211 CTR 545=
(2008) 202 Taxation 210 (SC)
(4) Stock option not “perquisite” ‐ Salary – Failure to deduct tax – Law
before April 1, 2000 – Assessee creating trust for benefit of
employees and transferring non transferable shares to trust – Stock
options to employees subject to conditions – Lock‐in period – Stock
option not “perquisite” – Only notional benefit ‐ Not taxable as
perquisite – Income tax Act, 1961, ss. 17(1), (2)(iii), (iiia), 192, 201(1),
(1A).
Infosys Technologies Ltd., CIT v/s.
(2008)297 ITR 167 =166 Taxman 204=214 CTR 293 =
344
345
204 Taxation 13 = 1 DTR 330(SC)
(5) Lottery – Definition – Prize by draw of lots – Included in lottery with
effect from 1‐4‐2002 – Assessee distributing prize by draw of lots
prior to amendment ‐ No liability to deduct tax at source – Income
tax Act, 1961, ss. 2(24)(ix0, 194B, 201(1).
Jhaveri Industries , CIT v/s.
(2008)300 ITR 300(Guj)
(6) Payment to contractor ‐ Assessee placing orders for supply of
printed materials – Suppliers not exclusively supplying such goods
to assessee ‐ Outright purchase – Not a contract for work ‐
Assessee not liable to deduct tax at source – Income tax Act, 1961, s.
194C.
Girnar Food and Beverage P. Ltd. , CIT v/s.
(2008)306 TR 23(Guj)
(7) Payment to contractors – Tribunal deleting demand under
section 201(1), (1A) – Justified – Income tax Act, 1961, s.
201(1), (1A).
Tribunal considering supply of printing and packaging materials
as contract for sale and not a service/works contract – Finding
of fact – Income tax Act, 1961, s. 194C.
Hindustan Lever Ltd. , CIT v/s.
(2008) 306 ITR 25(Guj)
(8) Deduction of tax at source – Finding by Tribunal that lucky draw
scheme of assessee not a case of lottery – No liability deduct
tax on prize – Income Tax Act 1961, s. 194B.
Patel Gruh Nirman Flat Yojna, CIT v/s.
(2008)303 ITR 479(Guj)
(9) Section 194A of the Income Tax Act, 1961 – Deduction of tax at
source – Interest other than interest on securities – Motor Accidents
Claims Tribunal had passed a decree against petitioner insurance
company – In ensuing execution proceeding, petitioner contended
that it was not liable to deposit entire amount of outstanding dues
since it had deducted an amount as tax deducted at source from
amount of interest payable by it – However, Tribunal directed
petitioner to deposit entire outstanding dues as awarded to
claimants ‐ In view of specific provision contained in section 194A
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346
(3)(ix), petitioner was duty bound to deduct amount of Income Tax
from amount of interest payable by it.
United India Insurance Co. Ltd. v/s. Mitaben Dharmeshbhai Shah
(2004) 136 Taxman 565 = 189 CTR 329 = 181 Taxation 474 (Guj)
(10) Assessee to pay interest on borrowings from different parties –
Assessee debiting interest payable to P & L Account but neither
paying to parties nor crediting to their account ‐ No tax deducted
at source – AO holding since tax not deducted at source, assessee
liable to pay interest under section 201 (1A) – Held, the law at that
time did not require payment of tax unless the amount of interest
credited to parties account or interest paid – Interest rightly
remitted.
Koshalya Investment P. Ltd., CIT v/s
(2003)177 Taxation 77(Guj)
(11) Commission or brokerage – Meaning of commission or brokerage –
Element of agency essential – Difference between agency and sale –
Stamp vendors – Purchase of stamp papers at discount – Restriction
on sale and provision in Gujarat Stamps supply and sales rules, 1987
for surrender of stamp papers to Government – Provisions would
not render stamp vendors agents – Transaction amounts to sale –
Discount on sale of stamp paper does not attract section 194H.
Ahmedabad Stamp Vendors Association v/s. Union of India
(2002) 257 ITR 202 = 176 CTR 193 = 124 Taxman 516 =170 Taxation
677 (Guj)
(12) Section 201, read with section 194C, of the Income Tax Act, 1961 –
Deduction of tax at source ‐ Consequence of failure to deduct or pay
‐ Assessment years 1974‐75 to 1977‐78 ‐ Assessee failed to deduct
amount of tax from amount paid to contractor, which it was
required to deduct under provisions of section 194C ‐ However,
contractor had paid sufficient advance tax and also tax on self
assessment on due date ‐ Whether where no loss having been
caused to revenue on account of non deduction of tax at source by
assessee, no interest could be levied under section 201(1A) on
assessee on account of tax which was required to be deducted at
source by assessee ‐ Held, yes ‐
Rishikesh Apartments Co‐op. Housing Society Ltd. , CIT v/s.
(2001) 119 Taxman 239 = 171 CTR 288(Guj)
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347
107. TRANSFER OF CASE
(a) BLOCK ASSESSMENT
(1) Transfer of block assessment case – Warrant of authorization for
search proceedings having been found to be bad in law, there
remained no occasion to continue with the block assessment hence
even if order of transfer could be upheld, same would not be
operative.
Suvidha Association v/s. LR Meena / ADIT (Inv)
(2008) 220 CTR 382 = 207 Taxation 148 = 9 DTR 209(Guj)
(2) Block assessment cases ‐ Scope of application of provision – Applies
also to block assessments – Income tax Act, 1961, ss. 120, 127,
158B(a), 158BH.
Mohammed Salim (K.P) v/s. CIT
(2008) 300 ITR 302 = 216 CTR 97 = 169 Taxman 465 = 207
Taxation 81 = 6 DTR 179 (SC)
(b) TRANSFER OF ASSETS
(1) Irrevocable transfer of assets – Assessee partner of firm ‐ Part
of share in firm transferred to trust for benefit of children of
assessee – Gift complete by way of delivery and acceptance –
Transfer subject to gift tax – Section 60 not applicable –
Income from share in firm received by trust – Not includible in
total income of assessee – Income Tax Act, 1961, s. 60.
Jayantilal D. Patel, CIT v/s.
(2007) 295 ITR 386 = 162 Taxman 385 = 212 CTR 271=
(2008) 203 Taxation 241 (Guj)
(2) Transfer of assets – For benefit of spouse, etc. – Assessee’s brother
expired in 1966, his widow was taken as partner and his two
minor sons were admitted to benefits of partnership – She
remarried assessee in February 1970 and retired from partnership
in assessment year 1972‐73 – But both minors were again
admitted to benefits of partnership – In view of clear dictionary
meaning of expression ‘step‐child’, two minors became step
children of assessee – Provisions of section 64(1)(iii) were,
therefore attracted and since definition of ‘child’ included step
child with effect from 1‐4‐1976, share income of minors had to
be clubbed with income of assessee from assessment year 1976‐
77.
Abdul Rahim Khan M. Pathan , CIT v/s.
(2003)131 Taxman 397(Guj)
347
348
(3) Section 64 of the Income Tax Act, 1961 ‐ Transfer of assets ‐ For
benefit of spouse etc. ‐ Assessment years 1979‐80 and 1980‐81 ‐
Assessee had taken out a policy on his life for benefit of his wife ‐
Premia amounts were paid by assessee ‐ His wife received certain
amounts on maturity and earned interest thereon after making
investment ‐ ITO added interest income to assessee's total
income under section 64(1)(iv) but Commissioner (Appeals) deleted
addition on ground that obligation to pay premium being under a
contract, premia amounts could not be said to be assets transferred
by assessee for immediate or deferred benefit of his wife ‐
Whether interest income earned by wife by deposit/investment
of maturity value of insurance policy was income which arose
directly from cash asset transferred by assessee in shape of
premia to his wife, and therefore Tribunal was justified in including
full amount of interest so derived by wife as assessee's income
under section 64(1)(iv) ‐ Held, yes ‐
Damodar K. Shah v/s. CIT
(2001)119 Taxman 882 = 252 ITR 235(Guj)
(c) TRANSFER PRICING
International Transaction ‐ Transfer price – Arm’s length price
– Must take into account all risk‐taking functions of multi‐
national enterprise – Income Tax Act, 1961, ss. 92A, 92B, 92C,
92F(iiia) – Income Tax Rules, 1961, r. 10B.
Morgan Stanley & Co. Inc. v/s. Director of IT
(2007) 292 ITR 416 = 210 CTR 419= 162 Taxman 165 =
201 Taxation 160(SC)
108. TRIBUNAL
(1) Duty of Tribunal ‐ Reasoned order – Order of the Tribunal is
supposed to reflect not only the facts and contentions of the
rival parties, but also the issues which arise for its
consideration and the reasons for deciding the issues one way
or the other ‐ Impugned order of the Tribunal stating certain
facts contrary to that on record – Further, it is not a reasoned
and speaking order and is incoherent and vague – Also, it does
not deal with all the grounds raised before the Tribunal –
Therefore, the impugned order suffers from the vice of
perversity – Tribunal deprecated for its cursory manner of
working and making slipshod orders.
Gautam Harilal Gotecha v/s. Dy. CIT
(2006) 200 CTR 139= 281 ITR 283 = 192 Taxation 292 (Guj)
348
349
(2) Additional evidence – Admissibility – Assessee did not produce
any evidence of trust before the AO despite being called upon
to do so – No document was placed on record even in the
appeals before the first appellate authority – Though appeals
were filed before the Tribunal on 6 th Dec., 1989, assessee
filed an affidavit for the first time on 16 th Aug., 1993 seeking
to produce a trust deed dt. 4 th April, 1977 – Statement of facts
filed before the CIT(A) referred to a different trust deed
executed by some other settlor – Thus, Tribunal was right in
holding that this was not a case of additional evidence but
was a case of fresh evidence before the Tribunal for the first
time – That apart, no evidence was adduced as to why the
document was not produced either before the assessing
authority or the appellate authority – Therefore, Tribunal was
justified in refusing to admit the trust deed in evidence which
was filed before it for the first time – Though not categorically
recorded that the said document is not relevant, in essence,
that is the finding of the Tribunal.
N.B Surti Family Trust v/s. CIT
(2006)200 CTR 145 =153 Taxman 31 =192 Taxation 600 =
(2007) 288 ITR 523 (Guj)
(3) Disallowance under s. 43B – Liability to pay luxury tax – While
determining the tax liability of the assessee all the relevant
provisions of the Act have to be applied by the authority
concerned ‐ Appeal being continuation of original proceedings
and the Tribunal being the last fact finding authority is required
to determine the assessee’s liability under the Act – Therefore,
Tribunal was justified in applying s. 43B to the facts of the
assessee’s case although the said section was neither invoked
by the lower authorities nor was a ground urged in appeal.
Express Hotel (P) Ltd., CIT v/s.
(2006)200 CTR 476 = 281 ITR 160 = 192 Taxation 308 =
153 Taxman 156 (Guj)
(4) Orders of – Assessment year 1993‐94 – Order of Tribunal
should reflect not only its conclusion, but decision making
process also – Therefore, Tribunal could not have passed order
on basis of written submissions filed by department without
assigning independent reason so as to reflect application of
mind by Tribunal.
SJ & S.P Family Trust v/s. Dy. CIT (Assessment)
(2006)152 Taxman 234 =(2005) 308 ITR 82 =
221 CTR 175 (Guj)
349
350
(5) Reasoned order – While following the earlier judgments of the
Tribunal or of any Court, the Tribunal is required to record the facts
of the cases and then come to a reasoned conclusion that on the
given set of the facts, the earlier judgment would hold the field and
cover the lis pending before it ‐
Minalben Rameshbhai Jhaveri L/H. of Smt. Manoram B. Dalal,
CWT v/s.
(2006) 206 CTR 412 =(2007) 196 Taxation 250 =
294 ITR 394 (Guj)
(6) Duty of Tribunal – Duty to give reasons for decision – Order
without giving reasons – Order merely reproducing arguments
of counsel and agreeing – Not valid – Income Tax Act, 1961, s.
254.
S.J and S.P Family Trust v/d. Deputy CIT
(2005)277 ITR 557 = 198 CTR 255 = 189 Taxation 591=
(2006)152 Taxman 234 (Guj)
(7) Petitioner was silent director of a company – Based on documents
seized during search and seizure operations, addition was made on
protective basis in hands of petitioner and on substantive basis in
case of company – While deciding appeal of company, Tribunal,
without hearing petitioner, passed an order that entire figure of
profit mentioned on seized papers should be assessed in hands of
petitioner, as concerned papers were seized from his custody –
Tribunal had recorded finding that Assessing Officer had not caused
necessary enquiries to find out real nature of seized papers and also
not established with evidence, to whom papers actually belonged –
Tribunal’s order was not only contradictory but also showed non‐
application of mind and apparent perversity and, hence was liable to
be set aside – Tribunal should be directed to hear appeals of both
petitioner and company together and decide issue afresh .
Mansukhlal Nanjibhai Patel v/s. Dy. CIT
(2003)128 Taxman 444(Guj)
350
351
(8) Powers of – Commissioner (Appeals) set aside order of Assessing
Officer disallowing construction expenses debited by assessee as
part of disclosure of unaccounted expenditure – Tribunal set aside
order of Commissioner (Appeals) – Since Tribunal committed an
error in exercise of its jurisdiction in setting aside appellate order of
Commissioner (Appeals) without taking into consideration reasons
for which that order was made, impugned order of Tribunal could
not be sustained and Tribunal should be directed to reconsider
matter on merits in accordance with law.
Ramesh Chandra M. Luthra v/s. Asstt. CIT
(2003)128 Taxman 765 =(2002) 257 ITR 460= 176 CTR 39=
169 Taxation 662 (Guj)
Also see “Appeal to Tribunal”.
109. TRUST OR EXECUTORS
(1) Inclusions – Firm constituted by assessee and his mother – Will by
mother bequeathing certain assets for benefit of her minor
grandchildren – Will appointing assessee’s wife and another as
guardians and trustees – Profit income from firm to be divided in
equal share and deposited in accounts of each minor – On facts no
trust was created – Executor representing interest of minors and
depositing business income in each minor’s account – Not in
capacity of trustee but as executor of will – Explanation 2A of section
64(1)(iii) not applicable – Income Tax Act, 1961, s. 64(1)(iii), Expln.
2A.
Abdul Gafur A. Mistri, CIT v/s.
(2007) 292 ITR 515= 196 Taxation 255 = 212 CTR 171
= 164 Taxman 71 (Guj)
(2) Trust ‐ Whether specific or discretionary ‐ Depends upon
interpretation of trust deed in terms of Explanation 1 to section
164 – Tribunal not considering whether Explanation 1(ii) to section
164 applicable to trust or not – Matter remanded – Income tax Act,
1961,s. 164(1).
Sanjiv Family Trust v/s. CIT
(2007)292 ITR 156 = (2006) 205 CTR 264(Guj)
351
352
(a) ASSESSMENT
(1) Direct assessment of beneficiary vis‐à‐vis non receipt of income –
Unless and until the trustee exercises the discretion and distributes
the income in favour of the beneficiary, income of the trust cannot
be said to be received by the beneficiary and same cannot be taxed
under s. 166 – Trustee having not exercised his discretion to
distribute the income of the trusts, there is neither accrual nor
receipt of income and same cannot be taxed in the hands of the
assessee beneficiary – It could not be taxed also for the reason that
the trustee had paid tax on such income in UK.
H.H Maharaja Shri Jyotindrasinhji v/s. Asstt. CIT
(2008) 220 CTR 485(Guj)
(2) Remand for fresh consideration when no appeal filed by respondent
– As per provisions of Order 41, r. 33 of CPC the appellate Court can
pass appropriate orders and the appellate powers may be exercised
in favour of all or any of the respondents or parties, although such
respondents or parties may not have filed any appeal or objection
against the order giving rise to the appeal ‐ Apart from the fact that
the provisions of s. 254(a) confer very wide powers on the Tribunal,
there is nothing in the provisions of the IT Act which would have the
effect of nullifying the provisions of Order 41, r. 33 of CPC or the
principle underlying the said provision ‐ AAC granted partial relief
to the assessee in the appeals against estimated income – Revenue
went in appeal before the Tribunal – Tribunal having found that
there was no warrant for assessing the income at the amounts at
which the assessee was assessed in the respective assessment
years, it rightly set aside the orders passed by AAC and remanded
the matter to the AAC even though the assessee had not filed any
appeal against the additions sustained by the AAC.
P.B Corporation , CIT v/s.
(2004) 187 CTR 212 = 266 ITR 548 = 180 Taxation 80 =138 Taxman
167 (Guj)
(3) Section 255, read with sections 252 and 254, of the Income Tax Act,
1961 – Appellate Tribunal – Procedure of – Respondent No. 2
directed President of Tribunal that they would thenceforth submit
all proposals for postings and transfer of its members to Ministry of
Finance for its prior approval and that Ministry may also issue order
for posting and transfer of Members when it consider necessary –
Having regard to provisions contained in subsections (1) and (5) of
section 255, President of Tribunal has requisite power of transfer
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and posting of its members – Since in impugned order passed by
Government source of power had not been traced from provisions
of Act but to Delegation of Financial Powers Rules, 1958 which
have not nexus therewith, Central Government cannot confer upon
it such statutory power of transfer and posting of Members of
Tribunal.
Ajay Gandhi v/s. Singh (B)
(2004)134 Taxman 537 = 265 ITR 451=186 CTR 506= 179 Taxation
433 (SC)
(4) Share percentage of assessee trust’s beneficiaries totaling to 50 per
cent of assessee’s income, was to be accumulated and payment
was to be deferred for a period of 19 years ‐ In original assessment
proceedings one half of income was taxed in beneficiaries’ hands
and other half in trustees’ hands under section 161 on respective
shares of each beneficiaries – Subsequently, ITO noticed that income
falling under share of each beneficiary was wrongly taxed at rate
applicable to share of each beneficiary instead of individual rate of
tax calculated separately and applicable to total income of each
beneficiary and invoked section 154 – Assessment of trustee
would have to be made in same status as that of beneficiary whose
interest was sought to be taxed in hands of trustees – Total income
of beneficiary, i.e share of income of trust receivable by such
beneficiary under deed as well as other income of beneficiary which
would make up his total income, was required to be taken into
account for purpose of ascertaining rate at which total income of
such beneficiary was to be taxed – Merely because payment of
income which had accrued and which was credited to accounts of
beneficiaries since it was receivable each year, was delayed over a
period, it could not be said that income did not accrue in relevant
previous year – Therefore ITO was justified in passing rectification
order.
Ganesh Chhababhai Vallabhai Patel v/s CIT
(2003) 130 Taxman 163 = (2002) 175 CTR 498 =169 Taxation 637
258 ITR 193 (Guj)
(5) Assessment on trustees u/s. 161 ‐ Tax avoidance device ‐ ITO
treated the trustees as an AOP giving a finding that the assessee
trust was a device for avoiding payment of tax ‐ Tribunal did not
at all go into correctness or otherwise of finding regarding tax
avoidance ‐ In view of the Supreme Court decision, even for the
period prior to amendment of s. 161 w.e.f 1st April, 1984 it was
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open to the tax authorities and the Tribunal to examine the plea of
a device to avoid payment of taxes ‐ Revenue has certainly made
out a case for remanding matter to Tribunal for examining
controvery afresh ‐ Matter remanded to Tribunal.
Sona Family Trust, CIT v/s.
(2001)171 CTR 555(Guj)
(b) DIRECT ASSESSMENT OR RECOVERY NOT BARRED
Assessment years 1984‐85 to 189‐90 – Whether section 166 can be
invoked only when income is received by assessee – Held yes – One
‘V’ being father of assessee had executed two trust deeds in UK for
benefit of settlor and members of his family – Both trusts were
discretionary trusts and income therefrom was being shown in
returns of income of “V” during his life time and thereafter in
returns of assessee – For relevant assessment years, assessee had
not shown income from said trusts in his returns of income
contending that no remittance was received by him from U.K and
net income for those years had been retained by said trusts –
Assssing Officer, however made an addition of income from said
trusts in hands of assessee ‐ Whether when income had been
retained by trustees and it had not been distributed nor it had been
received by assessee and no evidence had been brought by
department to show that same had been received by assessee in
India, such income could be taxed in hands of assessee under section
116.
Maharaja Shri Jyotindrasinhji (H.H) v/s. Asst. CIT
(2008) 174 Taxman 605 = 16 DTR 3(Guj)
(c) TRUST BY WILL
Exemption under s. 5(1)(i) ‐ Property held under trust – Public
charitable trust created by will – Execution of a will by the author of
the trust is one of the valid and permissible modes of creating a trust
– Once the author of the will has indicated an intention to create a
trust, the purpose of the trust, the beneficiary and the trust
property, the moment the testator expires, the trust would come
into being – Formal transfer of trust property to trustee is not
required to be made where the trust is declared by will ‐ Trustees
were entitled to exemption under s. 5(1)(i) even in the absence of
trust deed.
Devar Kavasji T. Modi Executors & Trustees of Late Dr. T.D Edel
Behram, CWT v/s.
(2004)187 CTR 148= 136 Taxman 541=180 Taxation 426 = 268 ITR
175 (Guj)
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(d) ASSESSMENT OF DISCRETIONARY TRUST
(1) Discretionary trust – Assessee, a discretionary trust, passed a
resolution whereby it decided to disburse the income of the
relevant year only to one of the beneficiaries – By virtue of the said
resolution, an effort was made to convert the nature of the trust
from discretionary to specific – It was not open to it to do so –
Income of the assessee rightly taxed in the hands of the trust itself
under s. 164 – There being nothing on record to show that the said
income of the trust has already been taxed in the hands of the
beneficiary it was not proper for the Court to look at the record
which is not before it or which was not before the Tribunal.
Ambalal Sarabhai D. Trust, CIT v/s.
(2004) 187 CTR 155 = 137 Taxman 503 (Guj)
(2) Applicability of s. 164(1) ‐ Formation of main trust found to be
genuine and its income was allocated amongst its 20 beneficiaries,
assessee trust being one of them, each having 5 per cent share –
Each of the beneficiary trusts allocated its income to its beneficiaries
in any other trust and the income of such individual beneficiaries did
not exceed the maximum amount not chargeable to tax – In such
circumstances, the proviso to s. 164(1) was applicable and not the
substantive part of s. 164(1) – Accordingly, Tribunal was right in
directing the AO to charge the tax at normal rate instead of
maximum marginal rate – Question regarding colourable device
having not been referred, contention as to tax avoidance could not
be allowed to be raised.
Sinivali Trust , CIT v/s.
(2004) 187 CTR 619= 267 ITR 165 = 180 Taxation 100(Guj)
(e) TRUST OR A.O.P
(1) Assessment as AOP – Assessee trust having forty five
beneficiaries, all trusts said to have been formed for the
ultimate benefit of grand children of the settlor – On
appreciation of evidence on record, Tribunal found that the
assessee cannot be said to be a genuine trust but is a device
for avoiding payment of tax – There is no infirmity in finding
of fact recorded by the Tribunal ‐ However, in the absence of
any finding that the grand children had combined in a joint
enterprise to produce income, assessment could not be made
in the status of AOP at the maximum marginal rate under s.
167A – Tribunal is directed to determine as to who is the
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correct person in whose hands the income in question is liable
to be taxed.
Ganesh Chhababhai Family Trust v/s. CIT
(2005)199 CTR 563 =(2006) 252 Taxman 382 (Guj)
(2) Assessing creating a trust – Trust carrying on business – Revenue
taxing income of the assessee amounting to Rs. 12, 27,975 holding it
to be A.O.P – Assessee claiming income to be taxed in the hands of
the beneficiaries – Held, Tribunal not considering whether creation
of a trust a colourable device and formed for avoidance of payment
of tax – Case remanded back to Tribunal – Judgment of Apex Court
in the case of CIT v/s. KT Doctor 210 ITR 744 relied upon.
Sona Family Trust, CIT v/s.
(2002) 166 Taxation 97 =(2003) 126 Taxman 284 (Guj)
110. UNEXPLAINED INVESTMENT
(1) Scope of section 69A – No reasonable explanation regarding
investment – Addition to income justified – Income Tax Act,
1961, s. 69A.
B.I Investment (P) Ltd. v/s. CIT
(2007)289 ITR 172 = 207 CTR 227 =196 Taxation 238 =163
Taxman 757 (Guj)
(2) Section 69A of the I.T Act and to Valuation Cell – Estimated
profit on unexplained investment – Tribunal deleting the
addition – High Court remarked that unexplained investment
would increase the cost of construction there would be zero
effect on income – Further the High Court held that reference
to V.O not valid – Reference answered in favour of the
assessee & against the revenue. Income Tax Act, 1961 –
Section 69A.
Star Builders, CIT v/s.
(2007) 198 Taxation 180 = 294 ITR 338(Guj)
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(3) Assessee to give explanation relating to nature and source of
acquisition of money, gold, etc. – Value of gold ornaments outside
books found in raid in February, 1987 – Assessee admitting gold
ornaments belonged to him from undisclosed sources – Value of
gold ornaments added as income for assessment year 1986‐87 –
Tribunal finding income assessable in 1988‐89 instead of 1987‐88 as
accounting period would be Diwali 1986‐87 – Order of Tribunal
maintained – Income Tax Act, 1961, s. 69A.
Baroda Chain Works, CIT v/s.
(2007) 293 ITR 176 = 199 Taxation 506 (Guj)
(4) Cost of construction – Reference can not be made to Valuation
Officer to find out cost – Income Tax Act, 1961, ss. 69, 69A.
Star Builders, CIT v/s.
(2007) 294 ITR 338 = 198 Taxation 180 (Guj)
(5) During assessment proceedings it was revealed that assessee firm
had paid certain amount by way of ‘pagri’ for acquiring shop
premises on rent – ‘B’ , who was partner of firm which was
previously in possession of said property, admitted that an amount
had been paid by assessee to his wife ‘V’ in lieu of handing over
possession of premises in question ‐ Landlord also admitted to
receive an amount by way of pagri ‐ Income tax inspector
prepared a report and ITO added amounts paid by assessee to
‘V’ and landlord as unaccounted income of assessee – Affidavit of
‘V’ denying receipt of pagri which was belatedly produced by
assessee was obviously an afterthought to bolster up assessee’s
case and could not dislodge reliable version of ‘B’ – Therefore
addition was to be sustained.
Silk Museum v/s. CIT
(2003) 131 Taxman 491 = (2002) 257 ITR 22= 175 CTR 604 =
170 Taxation 137(Guj)
(6) Firm obtaining tenancy of premises – Finding by Tribunal based on
evidence that substantial amounts had been paid to evict erstwhile
tenants – Amount assessable as unexplained investment.
Silk Museum v/s. CIT
(2002) 257 ITR 22 = 175 CTR 604 = 170 Taxation 137(Guj)
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(7) Amount of sales by itself cannot represent the income of the
assessee who has not disclosed the sales – During survey it was
found that assessee had not disclosed certain sales in books of
account – Tribunal was jusfied in holding that unless there was a
finding that investment by way of incurring cost in acquiring goods
which had been sold, had been made by assessee and that had also
not been disclosed, only net profits embedded in sales and not
wholesale proceeds itself , would be treated as undisclosed income
of assessee.
President Industries, CIT v/s.
(2002) 124 Taxman 654 (Guj)
111. VALUATION
(a) CLOSING STOCK
(1) Authorised to gather information and assess value himself –
Provision of act do not impose restriction that Assessing Officer and
Officer gathering information should not be the same –
Vipan Kumar Jain, Union of India v/s.
(2003)260 ITR 1 =181 CTR 24 = 181 CTR 24 =129 Taxman 59 =
171 Taxation 781(SC)
(2) Net method ‐ Valuing raw materials at purchase price minus
modvat credit ‐ Valuing unconsumed raw material and work in
progress at end of year at net method ‐ Proper ‐ Adopting “gross
method” for purchases and net method for unconsumed stock at
end of year ‐ Not permissible.
Indo Nippon Chemical Co. Ltd., CIT v/s.
(2003)261 ITR 275= 182 CTR 291 = 130 Taxman 179 =
176 Taxation 1 (SC)
(3) Proper Practice ‐ To value closing stock at cost or market price
whichever is lower ‐ Firm – Dissolution on death of one partner ‐
Reconstituted with remaining partners without discontinuance of
business ‐ Closing stock of firm ‐ To be valued at cost or market
price whichever is lower.
Sakthi Trading co. v/s. CIT
(2001) 250 ITR 871(SC)
(4) Section 145, read with section 147, of the Income Tax Act, 1961 ‐
Method of accounting ‐ Valuation of closing stock ‐ Assessment
year 1971‐72 ‐ Assessee firm was a building contractor ‐ It
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constructed flats and sold them ‐ It treated transaction of hire
purchase of certain flats as part of sale and declared amount
received during accounting period as profits relatable to sale
transaction during assessment year 1971‐72 ‐ Assessment was,
however, reopened on ground that assessee had suppressed closing
stock of aforesaid flats in assessment year 1971‐72 as same were
sold in subsequent assessment year i.e 1972‐73 ‐ Accordingly,
addition was made ‐ However, it was found that no sales had
taken place of those flats in subsequent years and thus entire basis
on which action of ITO was founded disappeared ‐ Whether
addition was justified when closing stock had been properly
vlaued on basis of market price ‐ Held, no
Sadhuram Gordhandas v/s. CIT
(2001) 119 Taxman 603(GUJ)
(5) Reference to Valuation Officer – Assessment years 1982‐83 and
1983‐84 – A valuation officer appointed under Wealth Tax Act can
neither be called upon nor he would have jurisdiction to give a
report either to Assessing Officer under Income Tax Act except when
a reference is made under and in terms of section 55A, or to a
competent authority except under section 269L – In income tax
returns assessee disclosed certain amounts which she had invested
in construction of a house – These were not accepted by Assessing
Officer, who referred question of construction cost of house to
Valuation Officer ‐ Assessing Officer reopened assessment and
made addition of excess amount as undisclosed income – Assessing
Officer could not refer matter to Valuation Officer for estimating
cost of construction – Reassessment was bad.
Amiya Bala Paul (Smt) v/s. CIT
(2003)130 Taxman 511=182 CTR 489 = 262 ITR 407=
176 Taxation 221 (SC)
112. VOLUNTARY DISCLOSURE OF SCHEME
(1) Refund of tax – Assessee having paid tax on income declared
under VDIS, 1997 partly within time and partly beyond time
allowed under the Scheme, Department was justified in
accepting amount relatable to the amount of tax paid within
time only and issuing certificate to that extent – As regards the
balance of tax and interest paid by the assessee, the same was
required to be refunded or adjusted.
Hakimchand D. Chotal v/s. CIT
(2009) 221 CTR 589 = (2008) 10 DTR 23(Guj)
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(2) Voluntary Disclosure of Income Scheme, 1997 ‐ Maintainability
of declaration – Benefit of VDIS, 1997, could not be allowed
to the firm on the basis of purported disclosure made by it in
relation to the same amount which was disclosed by a partner
thereof during the search carried out at the premises of the
firm on the strength of search warrant issued in the name of
the partner.
Tanna & Modi v/s. CIT
(2007) 210 CTR 273 = 161 Taxman 329 =
201 Taxation 194 (SC)
(3) Declaration of income not earlier disclosed – Time for payment of
tax – Is rigid ‐ No scope for equitable consideration for extending
time.
Hemalatha Gargya v/s. CIT
(2003) 259 ITR 1 = 128 Taxman 190 = 182 CTR 107 =
174 Taxation 758 (SC)
(4) Whether income disclosed by assessee’s creditor could be said to be
explanation of cash credit found in assessee’s books – Held, no –
Whether, where Tribunal had ordered that cash credit in assessee’s
book stood explained in view of disclosure made by creditors under
section 24, order of Tribunal was vitiated in view of provisions of
section 68 of the Income Tax Act, 1961 – Held, yes.
United Trading & Construction Co. , CIT v/s.
(2002) 124 Taxman 493(SC)
(5) See also heading “Accounts” and “Method of Accounting”.
113. WEALTH TAX ACT
(a) AGRICULTURAL LAND
Land used for agricultural purposes – Intention of the assessee
was to keep the land in the condition in which it was and it was
not intended to be converted into non agricultural land –
Tribunal held that the fact that the land was surrounded by
buildings sites, etc. was not within the control of the assessee
and these factors would not change the character of the land
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– It also found that the land has the history of agricultural
use even after the relevant valuation dates and that the land
was shown as agricultural land in the revenue records –
Therefore, there is no infirmity in the order of the Tribunal
holding that the land is agricultural land.
Shashiben, CWT v/s.
(2005) 193 CTR 140 =186 Taxation 52 (Guj)
(b) ASSETS
(1) Compensation for acquisition of HUF property ‐ Assessee who
had thrown certain immovable property in the common
hotchpot of HUF was allotted 1/9 th share of that property on
partial partition – Land acquisition proceedings taken in
relation to said property – Assessee received only 1/9 th share
of the compensation – Assessee was not even in possession of
8/9 th share on the valuation date – Compensation money
having been received, the right to receive compensation stood
extinguished and there was no right in existence insofar as
assessee was concerned ‐ Therefore, tax cannot be levied on
the assessee in respect of portion of the compensation in
excess of 1/9 th share received by her.
Chanchalben , CWT v/s.
(2006)200 CTR 423 = 281 ITR 15 = 192 Taxation 295 =
153 Taxman 468 (Guj)
(2) Non inclusion of Income Tax refund and lease rent in net wealth
erroneous and prejudicial order – Though lease rent and Income
Tax refund had accrued to the assessee, these amounts were not
included in her net wealth ‐ CWT was justified in directing the WTO
under s. 25(2) to include the said assets in the net wealth of the
assessee – Any debt which is owed by anybody to the assessee
would be a property of the assessee and has to be included in the
assets of the assessee irrespective of the system of accounting
followed by the assessee.
Vijaykunverba , CWT v/s.
(2003) 184 CTR 397
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(c) AOP
Clubbing of wealth under s. 4(7) ‐ Member of AOP ‐ Open plot of
land belonging to co‐operative housing society allotted/leased to
member ‐ Not includible in the net wealth of the assessee member.
Kishore B. Setalvad v/s. CWT
(2001) 171 CTR 89 = (2002) 256 ITR 637=166 Taxation 303 =
(2003) 128 Taxman 560 (GUJ)
(d) W.T ‐ CLUBBING OF ASSETS
Net wealth – Whether assets of the family Trust to be clubbed
in the hands of the assessee – Held, no – Reference answered
against the revenue & in favour of the assessee , Wealth Tax
Act, 1957 – Section 4.
Mahendrabhai D. Parmar, CWT v/s.
(2007)196 Taxation 213(Guj)
(e) COMPULSORY DEPOSIT
Chargeability – Compulsory deposit with interest thereon ‐ Amount
standing to the credit of the assessee as compulsory deposits
including the accrued interest is not liable to W.T.
Indukumar C. Patel , CWT
(2003) 183 CTR 572 = (2002) 125 Taxman 173(Guj)
(f) EXEMPTION
(1) Exemption under s. 40(3)(vi) of Finance Act, 1983 – Business asset
Building under construction – Building under construction
admittedly not used by assessee for purposes of business would not
fall in the exception clause provided in s. 40(3)(vi) of the Finance
Act, 1983, hence could not be excluded from the ambit of
chargeable asset under that section.
Cadmach Machinery Co.(P) Ltd., CWT v/s.
(2007) 212 CTR 285 = 295 ITR 307(Guj)
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(2) Wealth Tax Act, 1957 – Residential house used for residential
purpose – Muff Villa, & Queen Villa used for office held to be
used exclusively for residential purpose for valuation under
section 7(4) of the Wealth Tax Act.
S.D Jadeja , CWT v/s.
(2006)192 Taxation 321 (Guj)
(3) Exemption under s. 5(1)(iv) – Allowability ‐ Life interest in house
property ‐ Life interest in a palace inherited by assessee from her
husband, an ex‐ruler, is an asset includible in her net wealth and
hence assessee is entitled to exemption under s. 5(1)(iv) in respect
of the same.
Dilherkunverba C. Jadeja, CWT v/s.
(2006) 205 CTR 301(Guj)
(4) Allowability ‐ Qualifying shares held as a dealer – Tribunal
found that the assessee has placed on record certificates from
the ITO having jurisdiction over the companies to establish the
fact that the shares held by her formed part of the initial
issue and as such, qualify for exemption – It also found that
the condition laid down in s. 5(3) namely holding the shares for
the specified period is satisfied by the assessee – As regards
applicability of s. 7 Tribunal has rightly held that the said
section is merely a machinery provision and it cannot
govern the allowability of exemption under s. 5 – Thus, there
is no infirmity in the order of the Tribunal allowing
exemption under s. 5(1)(xxa) in respect of shares held by
assessee even as a dealer.
Laxmidevi, C.D.R, CWT v/s.
(2005)193 CTR 222=185 Taxation 341=274 ITR 257=144 Taxman
600 (Guj)
(5) Wealth Tax Act ‐ Exemption under s. 5(1)(i) ‐ Property held under
trust – Public charitable trust created by will – Execution of a will by
the author of the trust is one of the valid and permissible modes of
creating a trust – Once the author of the will has indicated an
intention to create a trust, the purpose of the trust, the beneficiary
and the trust property, the moment the testator expires, the trust
would come into being – Formal transfer of trust property to trustee
is not required to be made where the trust is declared by will ‐
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Trustees were entitled to exemption under s. 5(1)(i) even in the
absence of trust deed.
Devar Kavasji T. Modi Executors & Trustees of Late Dr. T.D Edel
Behram, CWT v/s.
(2004)187 CTR 148= 136 Taxman 541=180 Taxation 426 = 268 ITR
175 (Guj)
(6) Position prior to 1‐4‐1993 – Whether when trustees are subjected to
levy of wealth tax as if trust property is held by trustees as
individuals, revenue cannot deny exemption to trust or trustees on
ground that they are not individuals – Held, yes.
Parwatibai Trust, CWT v/s.
(2004) 136 Taxman 184 = 180 Taxation 88 = 268 ITR 365 =
(2006) 154 Taxman 161 (Guj)
(7) Expression ‘building or a part thereof’ in section 4(7) would not
include open plot of land – Therefore, a member’s interest in an
open plot of land belonging to a co‐operative housing society and
allotted or let out to member, is exempt from liability to wealth tax.
Kishore B. Setalvad v/s. CWT
(2003) 128 Taxman 560(Guj)
(8) Exemption under s. 5(1)(iii) ‐ Property held under trust – Public
Charitable Trust vis‐à‐vis individual property ‐ It has been accepted
in the income tax reference that the assessee is a public charitable
trust and the properties in question are the properties of the trust –
Assessee trust entitled to exemption under 5(1)(i) – Said properties
could not be held to be belonging to the individual, the Sajjadnashin
of the trust.
Hazarat Pir Shah – E – Alam, CWT v/s.
(2002) 175 CTR 523 = 123 Taxman 657 = 170 Taxation 134 (Guj)
(9) Official residence of ex‐ruler – Reconstructed palace – Assessee was
in possession of a palace which was exempted for taxation purposes
under the notification issued under Part B States (Taxation
Concessions) Order, 1950 – Said palace was declared as the official
residence of the ex‐Ruler of Vadia – It was demolished and the scrap
was partly sold and partly utilized for construction of a new building
– Assessee being a successor of the ex‐ruler recognized by the
President prior to the commencement of the Constitution (Twenty
sixth Amendment) Act, 1971 was entitled to the benefit of s.
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5(1)(iii) in respect of the said building notwithstanding the fact that
it was reconstructed after demolishing the dilapidated palace.
Virawala Suragwala (D.S), CWT v/s.
(2002) 175 CTR 512 = 122 Taxman 782 = 170 Taxation 51 =
(2003) 259 ITR 405 (Guj)
(10) s. 5(1)(xxvi) – Deposit with banking company ‐ Deposit under
Compulsory Deposit (IT Payers) Scheme, 1974, provides that the
compulsory deposit is to be deemd to be a deposit with a banking
company for the purposes of exemption under s. 5 of the W.T Act,
1957 – Thus, the amount standing to the credit of the assessee as
compulsory deposits was not liable to wealth tax.
Avaniben Ajaybhai (Smt) , CWT v/s.
(2002) 177 CTR 279 = 123 Taxman 999 = 171 Taxation 282 =
258 ITR 542(Guj)
(11) s. 40(3)(vi) of Finance Act, 1983 ‐ Business assets – Residential
property used as guest house – Held to be used for business in the
income tax proceedings – Could not be treated differently in the
Wealth Tax proceedings ‐ It was exempt under s. 40(3)(vi).
Bombay Conductors & Electrical Ltd., CWT v/s.
(2002) 177 CTR 338 = 123 Taxman 1002 = 171 Taxation 278 =
258 ITR 667 = (2008) 3 DTR 200(Guj)
(12) Interest of partner in an industrial undertaking – Assessee HUF was a
partner in a partnership firm – Assessee claimed exemption under
section 5(1)(xxxii) in respect of its capital interest in said partnership
firm, which was rejected by wTO but accepted by AAC and Tribunal
– Whether were processing of goods was done by an outside agency
which was in no way connected with business of firm, then assessee
could not be said to have interest in a firm which was engaged in
business of manufacture of goods and, therefore, it was not entitled
to claim benefit of exemption under section 5(1)(xxxii) in respect of
its share in value of its assets – Held, yes.
Dilip Ratilal (HUF), CWT v/s.
(2002) 125 Taxman 458 (2003) 260 ITR 306= 184 CTR 136 (Guj)
(13) s. 5(1)(iv) – House property – Finding of fact – After considering all
the necessary facts and circumstances of the case as well as after
appreciation of the evidence led by the parties, the Tribunal found
as a matter of fact that the assessee has not claimed exemption
under s. 5(1)(iv) in respect of any other house and that the property
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in question was to be treated as a house used for the purpose of
residence – This is a finding of fact, which is not to be disturbed –
No question of law arises – Answer to question declined.
Chinubhai Lalbhai (HUF, CWT v/s.
(2002) 177 CTR 157 = 123 Taxman 834 = 171 Taxation 271 (Guj)
(14) Co‐operative Society – Member – Building or a part thereof allotted
to member – Does not include open plot of land ‐ Open plots of land
beloning to a co‐operative society and allotted / let out to its
members ‐ Not includible in net wealth of member.
Kishore B. Setalvad v/s. CWT
(2002) 256 ITR 637 = 166 Taxation 303 (Guj)
(15) Assessee claiming exemption of investment upto Rs. 1,50,000 made
in industrial concern – Firm getting work done by agency – Held,
assessee not entiled to claim exemption.
Chandrakant Ratilal, CWT v/s.
(2002) 171 Taxation 502 = 124 Taxman 65(Guj)
(16) Where amount of compulsory deposit is deposited in a banking
company to which the Banking Regulations Act, 1949 applies, said
amount of compulsory deposits with interest would not be liable for
Wealth Tax.
Indukumar C. Patel v/s. CWT
(2002) 125 Taxman 173 = (2003) 183 CTR 572 Guj)
(17) Assessee brought into India by NRI – Assessment years 1977‐78 to
1979‐80 – Assessee, who came to India in February, 1973 with
intention of permanently staying here, claimed exemption under
section 5(1)(xxxiii) which came into force with effect from 1‐4‐1977 –
Tribunal held that when exemption came into effect, fact that
assessee had come to India did remain a fact and that was only
requirement of provision, and therefore period of seven years would
begin to run from assessment year next following date on which
person returned to India – Thus, according to Tribunal assessee
would lose exemption for assessment years 1973‐74 to 1976‐77 but
would be entitled to exemption for assessment years 1977‐78 to
1979‐80 – Whether it could be said that Tribunal had committed
any error in coming to above conclusion – Held, no.
Rajivbhai Panchanbhai Patel, CWT v/s.
(2002) 125 Taxman 134 = 166 Taxation 217 = 10 DTR 173 (Guj)
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367
(18) Association registered under Bombay Public Trusts Act ‐ Granted
certificate under section 80G of Income Tax Act as established for
charitable purposes and under section 10(23) that its income was
exempt ‐ Not assessable entity under Wealth Tax Act ‐ Notice to
bring to tax Wealth escaping assessment ‐ Invalid.
Bombay Cricket Association , CWT v/s.
(2001) 250 ITR 663(SC)
(19) Assets brought into India by NRI ‐ Law applicable ‐ Effect of
provision brought into force with effect from 1‐4‐1977 granting
exemption to assets brought into India by NRI intending to stay in
India permanently ‐ Exemption for seven successive assessment
years ‐ NRI who returned to India in 1973 ‐ Entitled to exemption in
assessment years 1977‐78, 1978‐79 and 1979‐80 .
Ravjibhai Panchanbhai Patel , CIT v/s.
(2001) 253 ITR 184 = 171 CTR 298(GUJ)
(20) Open plots of land belonging to co‐operative housing society
allotted/leased to member ‐ While granting exemption to members
of co‐operative housing societies w.e.f 1st April, 1972 the
legislature inserted some words in s.4(1)(b) to ensure that each and
every interest of such member is not included in the net wealth ‐
Sec. 4(7) only covers a building or a part thereof belonging to a
co‐operative housing society and allotted or leased to a member
of the society ‐ Submission that the expression "building or a part
thereof would also include open plot of land cannot be accepted ‐
Legislature in its wisdom did not use the expression "property"
which is an expression of wide amplitude ‐ When the legislature
has granted exemption under s. 5(1) (xxviii) in respect of shares in
a co‐operative housing society, it implies that it intends to grant
exemption in favour of all rights flowing from such shares except
those contemplated by s. 4(7) ‐ Therefore, member's interest in an
open plot of land is exempt from tax ‐ Further, assessee member
was not bound by concession made by him before the Tribunal
offering the deposit with the co‐operative housing society to tax
since such deposit was exempt under cl. (xxix) of s.5(1).
Kishore B. Setalvad v/s. CWT
(2001) 171 CTR 89(GUJ)
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368
(g) LEGAL REPRESENTATIVES
Assesment years 1968‐69, 1970‐71, 1971‐72, 1983‐84 and 1984‐85 –
Whether in order to make legal representative of deceased assessee
liable for penalty under section 19(1), it is not enough that penalty
proceedings should be initiated during life time of deceased but it is
also necessary that such penalty proceedings must result into
penalty orders during his life time.
Gaekwad (F.P), Asstt. CIT v/s.
(2008)174 Taxman 551(Guj)
(h) LIFE INTEREST
Whether an asset is eligible for exemption under section
5(1)(iv) of the WT Act – Held, yes – Whether the jewellery
misappropriated includible in net wealth – Held, this matter is
question of pure finding of fact & no question of law is
involved – Reference answered against the revenue & in favour
of the assessee‐ Wealth Tax Act, 1957 – Section 5(1)(iv).
Jadeja D.C, CWT v/s.
(2007) 197 Taxation 309(Guj)
(i) W.T ‐ NET WEALTH
(1) Wealth Tax– Part of income of assessee appropriated to trust
– Assessee one of beneficiaries under trust – No power of
disposition of assessee – Sum appropriated not includible in
net wealth of assessee – Wealth Tax Act, 1957.
Mahendrabhai D. Parmar, CWT v/s.
(2007) 292 ITR 622= 196 Taxation 213(Guj)
(2) W.T ‐ Net Wealth ‐ Chargeability ‐Jewellery misappropriated by
third person – Jewellary which is found to have been
misappropriated by a third person cannot be included in the net
wealth of the assessee ‐
Dilherkunverba C. Jadeja, CWT v/s.
(2006) 205 CTR 301(Guj)
368
369
(j) W. T‐ PENALTY UNDER S. 18(1)(C) ‐ CONCEALMENT
(1) Levy of penalty under ss. 15B, 18(1)(a) and 18(1)(c) – Penalty
proceedings under ss. 15B, 18(1)9a) and 18(1)(c0 initiated
against the deceased assessee but penalty not levied during his
lifetime could not be levied on the legal representative after his
death.
Late Shrimant F.P Gaekwad Through L/H
Mrinalini Puar, Asstt. CIT v/s.
(2009) 221 CTR 423(Guj)
(2) Penalty under s. 18(1)(a) ‐ Reasonable cause – Delay in
furnishing of Income Tax return – Filing of Wealth Tax return
is dependent on the filing of Income Tax return or at least
the provisions of IT Act have some bearing on the
determination of wealth tax liability ‐ Therefore, penalty
under s. 18(1)(a) was not to be levied upto the date of fixing
of Income Tax return.
Maharaja Daljit Singhji, CWT v/s.
(2005) 193 CTR 137 =185 Taxation 345 = 274 ITR 524 (GUJ)
(3) Revised return before completion of assessment ‐ Low value shown
for property ‐ Correct valuation of the property as arrived at by the
approved valuer stated in the revised return ‐ It cannot be said
that the assessee had furnished inaccurate particulars of the
property ‐ Dy. CWT(A) has come to a conclusion that the assessee
had no intention to furnish inaccurate particulars ‐ Said finding
confirmed by the Tribunal ‐ Penalty rightly cancelled.
Hasmukhlal Gandalal, CWT v/s.
(2003) 184 CTR 23 = 264 ITR 42 =(2004) 134 Taxman 507 (Guj)
(4) Undervaluation of building in original return – In pursuance of
direction given by WTO, assessee got the building valued by an
approved valuer and upon knowing that the value of the building on
the valuation date was more, the assessee filed a revised return for
both the years showing the value as ascertained by the approved
valuer – Revised returns were filed within the prescribed time limit
before the assessment was completed – It cannot be said that the
assessee had furnished inaccurate particulars of the building –
Both the appellate authorities have arrived at a finding that the
assessee had no intention to furnish inaccurate particulars of the
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370
asset in question – Tribunal justified in confirming the cancellation
of penalties.
Chandkant Gandalal, CWT v/s.
(2003) 184 CTR 517(Guj)
(k) RECTIFICATION
Mistake apparent ‐ Assessment of trust under s. 161 vis‐à‐vis income
of trustees – Specific trust with 23 beneficiaries – Total income of
each beneficiary i.e the share of income of the trust receivable by
such beneficiary under the the trust deed as well as other income of
the beneficiary which would make up his total income was required
to be taken into account for the purpose of ascertaining the rate at
which the toal income of such beneficiary was to be taxed under s.
161(1) – Instead of acting as per the above settled position ITO
resorted to a rate of tax which was relatable only to the share of the
beneficiary in the income of the trust receiable by him – Thus, a
mistake crept in while assessing the trustee which required
rectification – Circular F. No. 45/78/66‐ITJ(S), dt. 24th Feb., 1967, has
no application to the facts of the case – Merely by referring to an
irrelevant circular, one cannot make a simple issue a debatable one
‐ Contention that the income receivable by the beneficiaries under
the trust deed was to be paid to them after nineteen years and that
therefore, it was not taxable in the relevant year was not raised at
the time of assessment – Same could not be raised in rectification
proceedings – Rectification justified.
Ganesh Chhababhai Vallabhai Patel v/s. CIT
(2002) 175 CTR 498 = 169 Taxation 637 = 258 ITR 193 =
(2003) 130 Taxman 163 (Guj)
(l) RESIDENTIAL HOUSE
(1) Applicability of s. 7(4) –Expression “exclusively used by him for
residential purposes” means that the property should not be
put to any non‐residential use i.e to generate income ‐
Admittedly, property in question i.e, Queen Villa is used by the
assessee for office purposes and is not put to any commercial
use – Finding of the Tribunal that Queen Villa and the self
occupied house property of the assessee are contiguous,
existing in same compound within common boundaries not
challenged – Thus, both the buildings constituted a house
370
371
belonging to the assessee and exclusively used by him for
residential purpose within the meaning of s. 7(4).
Jadeja, S.D, CWT v/s.
(2005) 199 CTR 503= (2007) 197 Taxation 309 =
(2006)152 Taxman 202 =283 ITR 45 (Guj)
(2) Residential house – House property retained for residential purposes
– Though the assessee did not actually stay in the house property in
question, he kept it reserved for his residential purposes and did not
let out the property to anyone – Person using a house for his
residential purpose does not cease to use the same for such purpose
when he is away from the house – Use of a house for residential
purpose does not require compulsory residence in that house – So
long as he intends to use his house and retains it exclusively for his
residential purposes, the house would be said to be exclusively used
by him for his residential purposes – Thus, the house property in
question was used for residential purpose and assessee was entitled
to benefit of s. 7(4).
Anilkumar M. Virani, CWT v/s.
(2002)175 R 412 =123 Taxman 586 =169 Taxation 652 =
258 ITR 81 (Guj)
(m)REVISION
Section 25(2) of the Wealth Tax Act – 12% share in property included
at Rs. 21.641 –Subsequently agreement for sale of the property for
Rs. 11,25,000 for 31‐3‐1981 ‐ Commissioner of Wealth Tax passed
order under section 25(2) of the Wealth Tax Act – Tribunal cancelled
order under section 25(2) – Hon’ble High Court confirmed
Tribunal’s order.
R.R Patel Through L/R Shri. K.R Patel, CWT v/s.
(2006) 192 Taxation 345 = 284 ITR 315(Guj)
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372
(n) TRUST
s. 21(4) ‐ Assessment of trust ‐ Applicability of s. 21(4) ‐ Tribunal
holding that s. 21(4) was not applicable on the analogy of its decision
in the income tax proceedings wherein it was held that though the
trust was governed by s. 164(1) of the IT Act the rate applicable to
such trust under s. 164 was not applicable in view of cl. (i) of the
proviso to s. 164(1) ‐ Not justified ‐ No provision exists under
proviso to s. 164(1) of the IT Act ‐ Tribunal erred in not noticing this
apparent difference in the provisions under the two Acts ‐
Provisions of s. 21(4) applicable.
G.R Employees Welfare Trst, CWT v/s.
(2001) 169 CTR 343(Guj)
(o)VALUATION
(1) Immovable property ‐Property let out for non‐residential
purposes – Admittedly, r. 1BB applies only to a house which is
wholly or mainly used for residential purposes – However,
since the WT Rules do not contain any specific rule for
valuation of a house which is let out for non residential
purposes, the AO has to follow rational principles for valuation
of such house as well, and repairs and rent collection charges
are to be treated as legitimate deductions even for
determining value of a house let out for business purposes –
Therefore, 1/6 th deduction towards repairs is allowable
irrespective of the fact whether the assessee has incurred any
expenditure on repairs – As regards collection charges, AAC
found that the amount expended by the assessee was less
than 4 per cent of gross rent – Any sums spent to collect the
rent from the house, not exceeding six per cent, is deductible
in determining the net maintainable rent by virtue of sub‐cl.
(iii) of cl. (c) of r. 1BB(2) – Therefore, collection charges as
shown by the assessees were also deductible.
Abdulsaeed Abdulhamid Patel, CWT v/s.
(2006) 200 CTR 276 = 181 ITR 132 = 192 Taxation 206 =
283 ITR 97(Guj)
372
373
(2) Immovable property – Assessment years 1979‐80 and 1981‐82 –
Assessee HUF in respect of a house belonging to HUF and exclusively
used for residential purposes, claimed benefit under section 7(4) –
In past years, assessee claimed and availed exemption in respect of
said house under section 5(1)(ivb) – Whether such exemption
availed of in respect of said house would not preclude assessee from
exercising its option under section 7(4) –Held, yes–Whether
assessee, even though was an HUF, was entitled to benefit of section
7(4) in respect of said house–Held, yes.
Ashok Raje Gaekwad, CWT v/s.
(2004)135 Taxman 272= 188 CTR 14 = 267 ITR 54=180 Taxation
203 (Guj)
(3) Shares ‐ Whether rule 1D for determining break‐up value of shares
of private limited companies shall be applied in light of principles
laid down by Apex Court in case of Bharat hari Singhania v/s. CWT
(1994) 207 ITR 1/73 Taxman 3 – Held, yes.
Indukumar C. Patel v/s. CWT
(2002) 125 Taxman 173 = (2003) 183 CTR 572 (Guj)
(4) Unquoted equity shares – Computation under r. 1D – Gross amount
of provision for taxation was not deductible as a liability while
applying r. 1D for determination the break up value of shares.
Indukumar C. Patel , CWT
(2003) 183 CTR 572(Guj)
(5) Immovable property – Reversionary value of land – Reversionary
value of land could not be included while working out the valuation
of the property when the property was rented out.
Chinubhai Haridas (HUF), CWT v/s.
(2003) 179 CTR 162(Guj)
(6) Remainderman’s interest in trust property ‐ Estate duty payable on
the death of life tenant ‐ On the death of the holder of the life
interest the provisions of ED Act would be applicable and the estate
duty determined in terms of sub‐s. (2) of s. 74 of that Act would be
first charge on such interest ‐ Potential estate duty being
‘encumbrance’ is a relevant factor for determining the market
value of the remainderman’s interest in trust properties ‐ Thus, the
risk or hazard of the estate duty liability will have direct impact on
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374
the purchaser of the remainder interest and is a relevant factor
for the purpose of determination of valuation of the interest to be
held by the remainderman.
Trustees of HEH, CWT v/s.
(2003) 181 CTR 385 = 129 Taxman 485 = 261 ITR 690 =
174 Taxation 770 (SC)
(7) Land in question being covered under the Urban Land (Ceiling and
Regulation) Act, 1976, it was not open to assessee to sell it in open
market ‐ Therefore value of land could not be more than what
Government was to offer to assessee under provisions of Ceiling
Act.
G.S Krishnavati Vahuji Maharajkalyanraiji Temple, CIT v/s.
(2003) 131 Taxman 339 = 264 ITR 517 = 185 CTR 503=
(2004) 179 Taxation 241 (Guj)
(8) Assessment years involved are 1973‐74 to 1979‐80 – Assessee filling
report of registered valuer – AO referring matter to DVO and
adopting value as per his report – Being aggrieved, assesseee filing
an appeal before CIT(Appeals) – CIT (Appeals) passed order than in
computation of gross annual rental income deductions on account of
collection, management charges, bad debts, vacancies, maintenance
and repairs and the effect of the order of Rent Control Act and
Urban Land Ceiling Act be given – Tribunal confirming order – Held,
Tribunal justified in upholding CIT(A)’s order.
Harshad Kumar S. Mehta v/s. CWT
(2003) 178 Taxation 503(Guj)
(9) Unquoted equity shares – Applicability or r. 1D – Valuation has to be
done in
accordance with r. 1D – Tribunal was not justified in confirming the
order of CIT(A) directing the WTO to value the unquoted shares of
private limited companies in accordance with the principles laid
down in the case of.
Chinubhai Lalbhai (HUF), CWT v/s.
(2002) 177 CTR 157 = 123 Taxman 834 = 171 Taxation 271(Guj)
(10) Residential house – House property retained for residential purposes
– Though the assessee did not actually stay in the house property in
question, he kept it reserved for his residential purposes and did
not let out the property to anyone – Person using a house for his
residential purpose does not cease to use the same for such purpose
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375
when he is away from the house – Use of a house for residential
purpose does not require compulsory residence in that house – So
long as he intends to use his house and retains it exclusively for his
residential purposes, the house would be said to be exclusively used
by him for his residential purposes – Thus, the house property in
question was used for residential purpose and assessee was entitled
to benefit of s. 7(4).
Anilkumar M. Virani, CWT v/s.
(2002) 175 CTR 412 = 123 Taxman 586 = 169 Taxation 652 =258
ITR 81 (Guj)
(11) Life interest in trust – Applicability of r. 1B – Life interest of the
assessee in the
trust in question had to be valued only by applying the provisions of
r. 1B and not by actuarial method of valuation.
Chhayaben Suhashbhai v/s. CWT
(2002) 177 CTR 358 = 171 Taxation 286 = 258 ITR 624 =
124 Taxman 5 (Guj)
(12) House property ‐ Relevant considerations – WTO completed the
assessment by adopting the valuation made by the DVO – In appeal,
AAC adopted his own value after examining the valuation adopted
by the registered valuer as well as the DVO – Tribunal confirmed
AAC’s order – Findings arrived at by the authorities are based on
facts which were correctly appreciated by the authorities – No
interference warranted.
Harshadkumar S. Mehta v/s. CWT
(2002) 177 CTR 472 = 124 Taxman 183 (Guj)
(13) Section 7 of Wealth Tax Act, 1957, read with rule 1D of the Wealth
Tax Rules, 1957 – Valuation of asset – Unquoted shares – Whether
value of shares is to be computed under rule 1D as interpreted by
Supreme Court in case of Bharat Hari Singhania v/s. CWT (1994) 207
ITR 1/73, Taxman 3 – Held, yes.
Rajendra K. Parikh, CWT v/s.
(2002) 125 Taxman 378 = 174 CTR 442 (Guj)
(14) Unquoted equity shares – Yield or break‐up method – Break‐up
method prescribed under r. 1D was applicable for valuation of
unquoted equity shares.
Chandrakala Kasturbhai, CWT v/s.
(2002) 178 CTR 232 = 125 Taxman 170(2003) 172 Taxation 13 (Guj)
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376
(15) Immovable Property – Whether probable estate duty payable on
death of life tenant has to be taken into account and value of
property will be diminished by that for charge of wealth tax in hands
of remainder man ‐ In view of conflicting decisions by two Benches
of Surpeme Court matter was to be placed before Chief Justice for
appropriate orders, Held, yes.
Trustees of Hch. Etc., CWT v/s.
(2002) 125 Taxman 653 = 258 ITR 508 = 178 CTR 473 (SC)
114. WORDS AND PHRASES
(1) “Actually paid “ meaning of
Mugat Dyeing & Printing Mills v/s. Asstt. CIT
(2007) 290 ITR 282 = 207 CTR 606 = 198 Taxation 439 (Guj)
(2) “Amount” “Wrongfully”, meaning of
Sandvik Asia Ltd. v/s. CIT
(2006)280 ITR 643= 200 CTR 505 = 150 Taxman 591=
193 Taxation 163 (SC)
(3) ‘Any’ meaning of
Mohammed Salim (K.P) v/s. CIT
(2008) 300 ITR 302 = 216 CTR 97 = 169 Taxman 465 = 207
Taxation 81 (SC)
(4) “Any other object of general public utility”, “charitable
purpose, meanings of
Gujarat Maritime Board , CIT v/s.
(2007) 295 ITR 561 =(2008) 214 CTR 81=166 Taxman 58 =
203 Taxation 263 = 1 DTR 1 = (2007) 295 ITR 561(SC)
(5) “Assessee offers no explanation” meaning of
P. Mohanakala, CIT v/s
(2007) 291 ITR 278 = 210 CTR 20 = 161 Taxman 162 =
201 Taxation 349 (SC)
(6) “Business”, meaning of
G.K Choksi & Co. v/s. CIT
(2007) 295 ITR 241 =165 Taxman 299 = 213 CTR 425 (SC)
376
377
(7) “Business connection”, “permanent establishment”, meanings of–
different.
Ishikawajima‐Harima Heavy Industry Ltd. v/s. Director of
Income Tax, Mumbai
(2007) 288 ITR 408 = 207 CTR 361= 8 RC 149 = 158 Taxman
259 =198 Taxation 103 (SC)
(8) ‘Business’ as occurring in section 32(1)(iv) of the Income Tax Act,
1961 does not include “profession”.
G.K Choksi & Co. v/s. CIT
(2003) 127 Taxman 109 = 175 Taxation 222 (Guj)
(9) “Business of export”
Prabhakar (P.R) v/s. CIT
(2006) 284 ITR 548 = 154 Taxman 503 = 204 CTR 27
195 Taxation 221(SC)
(10) “Commitment charges” , meaning of
Gujarat Alkalies & Chemicals Ltd., Dy. CIT v/s.
(2008) 299 ITR 85 = 167 Taxman 203 = 215 CTR 10 =
204 Taxation 51 = 3 DTR 58 (SC)
(11) “Concealment of income”, “inaccurate”, “furnishing inaccurate
particulars”, meaning of
Dilip N. Shroff v/s. Joint CIT
(2007) 291 ITR 519 = 210 CTR 228 =161 Taxman 218 =
201 Taxation 53 (SC)
(12) “Concession” as occurring in section 17(2)(ii) of the Income
Tax Act, 1961.
Arun Kumar v/s. Union of India
(2006) 155 Taxman 659 = 286 ITR 89 = 205 CTR 193 (SC)
(13) “Current repairs”, meaning of
Saravana Spinning Mills P. Ltd., CIT v/s.
(2007) 293 ITR 201=163 Taxman 201= 211 CTR 281 = 9 RC 422=
(2008) 202 Taxation 196 (SC)
(14) “Due” , “receivable”, “payable”, meanings of.
Upanishad Investment P. Ltd., CIT v/s.
(2003) 260 ITR 532 = 131 Taxman 20 = (2002) 177 CTR 176=
171 Taxation 669 (Guj)
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378
(15) “Employ”, Meaning of
Prithviraj Bhoorchand, CIT v/s.
(2006) 280 ITR 94 = 200 CTR 82 = 152 Taxman 372 =
192 axation 301 (Guj)
(16) “Founder of the Institution”, Meaning of.
Bharat Diamond Bourse, Director of I.T v/s.
(2003) 259 ITR 280 = 179 CTR 225 = 126 Taxman 365 =
173 xation 1(SC)
(17) “Genuine Hardship”, meaning of
Malani B.M v/s. CIT
(2008)219 CTR 313=174 Taxman 363 = 306 ITR 196= 13 DTR 186(SC)
(18) “Gross total income “, meaning of
Synco Industries Ltd. V/s. Assessing Officer(Income Tax)
(2008) 299 ITR 444 = 215 CTR 385 = 168 Taxman 224
=4 DTR 203(SC)
(19) “In due time” , meaning of
Prakash Nath Khanna v/s. CIT
(2004)266 ITR 1 = 187 CTR 97 =135 Taxman 327=
180 Taxation 18(SC)
(20) “Levy”, “collection”, meaning of
Peekay Re‐rolling Mills P. Ltd. v/s. Assistant Commissioner.
(2007) 8 RC 532(SC)
(21) “Manufacture”, meaning of ‐
Kumar Motors v/s. Commissioner of Sales Tax
(2007) 8 RC 312(SC)
(22) “Manufacture”, “Prima Facie” means.
Tara Agencies, CIT v/s.
(2007)292 ITR 444 = 210 CTR 454 = 162 Taxman 337 =
201 Taxation 359(SC)
(23) “Mistake”, “rectification”, meanings of ‐
Honda Siel Power Products Ltd. v/s. CIT
(2007)295 ITR 466 = 165 Taxman 307 = 213 CTR 425(SC)
(24) “Month”, meaning of
S.L.M Maneklal Industries Ltd., CIT v/s.
(2005) 274 ITR 485 196 CTR 526=187 Taxation 584 =
378
379
(2007)158 Taxman 158 (Guj)
(25) “Motor Lorry” meaning of–Income Tax–General principles–Evidence
– Fact of which Court can take judicial notice need not be proved ‐
Mobile crane is motor lorry.
Gujco Carriers v/s. CIT
(2002) 256 ITR 50 = 174 CTR 324 = 122 Taxman 206 (Guj)
(26) ‘Not ordinarily resident’, meaning of
Pradip J. Mehta v/s. CIT
(2008) 300 ITR 231 = 216 CTR 12 = 169 Taxman 454 =
206 Taxation 169(SC)
(27) “Office premises”, menaing of.
Statronics & Enterprises (P) Ltd., CIT v/s.
(2007)288 ITR 455 = 207 CTR 96 = 196 Taxation 198 =
165 Taxman 153 = (2008) 3 DTR 343 (Guj)
(28) “Order passed by the Income Tax Officer” scope of.
T.N Civil Supplies Corporation Ltd. V/s. CIT
(2003) 260 ITR 82 = 180 CTR 307 = 129 Taxman 69(SC)
(29) Central Excise – Assessable value – Other Taxes ‐ Excise duty, Sales
Tax and “other taxes” to be excluded – “Tax” includes administrative
charges recovered on molasses sold or supplied by occupier of sugar
factory ‐ Administrative charges to be excluded from assessable
value.
Kisan Sahkari Chini Millis Ltd., Commissioner of Central Excise,
Meerut V/s.
(2002) 255 ITR 57 (SC)
(30) “Otherwise transferred” as occurring in section 32A(5)(a) of the
Income Tax Act, 1961.
Nipa Twisting Works, CIT v/s.
(2003) 130 Taxman 649 = 183 CTR 465 =263 ITR 697 =
177 Taxation 573 (Guj)
(31) “Pending”, meaning of
Shatrusailya Digvijaysingh Jadeja, CIT v/s.
(2005) 277 ITR 435= 197 VTR 590 = 147 Taxman 566=
(2006) 190 Taxation 3 (SC)
(32) “Perquisite” , meaning of
Infosys Technologies Ltd., CIT v/s.
(2008) 297 ITR 167 =166 Taxman 204 =214 CTR 293 =
379
380
204 Taxation 13 = 1 DTR 330 (SC)
(33) “ Plant”, meaning of
Hoogly Mills Co. Ltd. , CIT v/s.
(2006) 287 ITR 333 = 206 CTR 301= 157 Taxman 347=
(2007) 196 Taxation 734 (SC)
(34) “Possession”, meaning of ‐ Has to be conscious possession.
Gopaldas Udhavdas Ahuja v/s. Union of India
(2004) 268 ITR 273 = 190 CTR 1 (SC)
(35) “Processing of Goods”, meaning of
Rajasthan Ice and Cold Storage, State of Rajasthan v/s.
(2003) 264 ITR 158 =(2004) 134 Taxman 259 (SC)
178 Taxation 732 (SC)
(36) “Profit “ meaning of
IPCA Laboratory Ltd. v/s. Dy. CIT
(2004) 266 ITR 521 = 135 Taxman 594 = 187 CTR 513 =
181 Taxation 2 (SC)
(37) “Profit”, meaning of
Moosa (A.M) v/s. CIT
(2007) 294 ITR 1 = 163 Taxman 741 = 212 CTR 89 (SC)
(38) ‘Profits’ as occurring in section 80HHC of Income Tax Act,
1961, does not include “loss”,.
Induflex Products (P) Ltd., ITO v/s.
(2005) 149 Taxman 687 =199 CTR 712 (SC)
(39) “Raw material”, meaning of ‐
Rajasthan Taxchem Ltd., Commercial Taxation Officer v/s.
(2007) 8 RC 312(SC)
(40) “Tax sought to be evaded”, “in addition to any tax payable”,
meaning of.
Virtual Soft Systems Ltd. v/s. CIT
(2007) 291 ITR 83=207 CTR 733 = 159 Taxman 155 =
8 RC 429 = 199 Taxation 423 (SC)
(41) “Total turnover”, meaning of
Lakshmi Machine Works, CIT v/s.
(2007) 290 ITR 667 = 160 Taxman 404 = 210 CTR 1 =
199 Taxation 254 (SC)
380
381
(42) Excise duty, Sales Tax and “Other taxes” – Tax has to be levied by
200 Central or State legislature or statutory authority ‐ Steel
plants – Committee for regulating prices – Element of price
comprising addition for constituting fund for modernisation,
research and development etc. in production of iron and steel –
Not “Tax” – Is part of price ‐ Not deductible in ascertaining
excisable value.
Tata Iron and Steel Co. Ltd. v/s. Collector of Central Excise.
(2003) 263 ITR 466 = (2004)178 Taxation 719( (SC)
(43) “Taxes due”, meaning of
State Bank of India, Dy. CIT
(2009)308 ITR 1 = 176 Taxman 116 = 221 CTR 14=209 Taxation 1=
(2008) 16 DTR 163 (SC)
115. WRIT
(1) Decision of a single judge – Whether appeal lies to a Division Bench –
Not to be decided on the basis of nomenclature given in writ
petition – Petition containing prayer for quashing assessment order
of Assistant Commissioner, Commercial Tax – Writ petition is one in
effect under article 226 – Appeal lies to a Division Bench –
Constitution of India, arts. 226, 227 – M.P Uchcha nyayalay (Khand
Nyaypeeth Ko Appeal) Adhiniyam, 2005, s. 2(1).
M.M.T.C Ltd. v/s. Commissioner of Commercial Tax
(2008) 307 ITR 276 = 11 RC 638=177 Taxman 251 (SC)
(2) Maintainability ‐ Clearance from Committee on Disputes – No
approval of Committee on Disputes is required in case the
dispute is between a State Government and the Central
Government or their undertakings.
Gujarat Maritime Board , Asstt. CIT v/s.
(2008) 220 CTR 390 = 15 DTR 70 (Guj)
(3) Writ petition – Validity of notice questioned – Maintainability –
Revisional authority issuing notice beyond five years – Statute
not providing period of limitation – Dealer challenging notice
on ground of limitation – Revisional authority cannot decide
period of limitation – Petition maintainable – Constitution of
India, art. 226.
381
382
Action to be taken – No period of limitation specified in statute
– Action has to be taken within a reasonable period –
Reasonable period depends on nature of statute, rights and
liabilities and other factors.
Batinda District Co‐op. Milk Producers Union Ltd.,
State of Punjab v/s.
(2007) 9 RC 637(SC)
(4) Writ under Article 32 of the Constitution ‐ Highlighting the root
of corruption – Direction for prosecuting Shri Mulayam Singh
Yadav the Chief Minister & others under the Prevention of
Corruption Act 1988 for amassing assets more than known
sources of income by misusing the power & authority – Writ
claimed by the respondents as politically motivated – The
Supreme Court observing that the facts stated by the
petitioner are disputed & the voluminous documents
comprising inter alia the IT & WT records have to be
meticulously scrutinized & statements of the concerned have
to be recorded, require expertise in the field of accounting &
valuation ‐ The Supreme Court directed the CBI to enquire into
the alleged acquisition of wealth with the held of Cas,
engineers & certified valuers & submit a report to the Union
of India which may take further steps – Writ petition disposed
of accordingly – Constitution of India – Art. 32. Prevention of
Corruption Act, 1988.
Vishwanath Chaturvedi v/s. UOI & Ors.
(2007) 199 Taxation 292(SC)
382
383
(5) Writ by third party ‐ Maintainability ‐ Competence of the
States to levy sales tax on telecommunication services – This is
not an issue which could have been raised and decided by the
assessing authorities – If the State legislatures are
incompetent to levy the tax, it would not only be an arbitrary
exercise of power by the State authorities in violation of Art.
14, it would also constitute an unreasonable restriction upon
the right of the service provides to carry on trade under Art.
19(1)(g) – Writ petitions maintainable.
Bharat Sanchar Nigam Ltd. & Anr. V/s. Union of India & Ors.
&
General Manager,BSNL, Asstt. Commr. Trade Tax, Asstt,
Commr. Trade Tax & Ors v/s.
(2006)201 CTR 346 = 152 Taxman 135=282 ITR 273 =
194 Taxation 1 (SC)
(6) Maintainability of writ by third party ‐ Petitioners cannot seek any
remedy of writ of mandamus in public interest litigation directing
the Revenue Department to file appeal under s. 260A against the
orders of the Tribunal in the case of third parties.
Rajiv Ranjan Singh ‘Lalan’ & Anr. V/s. Union of India & Ors.
(2006) 205 CTR 53 = 156 Taxman 512 (SC)
(7) Maintainability – Oral prayer ‐ No grievance or prayer made in the
petition for refund of tax – Oral prayer for refund not
maintainable.
B & Brothers Engineering Works & Anr. V/s. Union of India.
(2005) 197CTR 306 = (2006) 190 Taxation 779 =
282 R 474 = 153 Taxman 405 (Guj)
(8) Alternative remedy – Notice under s. 148 – Decision of the Supreme
Court in GKN Driveshafts (India) Ltd. v/s. ITO (2003) 179 CTR (SC) 11
: (2003) 259 ITR 19 (SC) does not purport to divest the Court of its
constitutional power to issue a writ of prohibition or any other
appropriate writ in a fit case to restrain the assessing authority
from proceeding with the notice under s. 148 ‐ Said case only lays
down the proceeding with the notice under s. 148 – Said case only
lays down the procedure that should ordinarily be followed in such
case, i.e after receiving the reasons, the assessee should first
lodge his preliminary objections against the notice before the AO
who should decide the objections by a speaking order and the
383
384
assessee, if still aggrieved can challenge the order in a writ petition
– The rigour of availing of the alternative remedy before the AO for
objecting to the reassessment notice under s. 148 has been
considerably softened by the apex Court in the GKN case –
Therefore, writ petition challenging the impugned notice is
dismissed with the clarification that if the assessee lodges its
preliminary objections before the AO with reference to the notice
or in relation to reasons disclosed in the additional affidavit, the AO
is to consider and decide the objections by a speaking order, and in
case the order is adverse to assessee, it would be at liberty to
challenge such order by filing a writ petition – Pre and post GKN
case position regarding maintainability of writ explained.
Garden Finance Ltd. v/s. Asstt. CIT
(2004) 188 CTR 316 = 137 Taxman 49=268 ITR 48 =
181 xation 481 (Guj)
(9) High Court to consider limitation before granting relief .
British India Corporation Ltd., Union of India v/s.
(2004)267 ITR 481(SC)
(10) Territorial jurisdiction – Person assessed regularly in Delhi – Search
in Chennai ‐ Survey operations and block assessment in Delhi – High
Court in Delhi – Has jurisdiction – Availability of alternative remedy
– No bar when action complained of is wholly without jurisdiction –
Ajit Jain , Union of India v/s.
(2003) 260 ITR 80 = 129 Taxman 74 = 260 ITR 80 (SC)
(11) Stay order on deposit of rupees one crore – Department to refund
amount deposited with interest if dealer succeeds in appeal ‐
Order of High Court made under writ jurisdiction not governed by
provisions of Sales Tax Act relating to refunds ‐ Refund should be
made of amount deposited with interest from date of deposit of
amount pursuant to order of High Court –
Tata Refractories Ltd. v/s. Sales Tax Officer
(2003) 260 ITR 312(SC)
384
385
(12) Issue of notice – Whether when a notice is issued under section 148,
proper course of action for notice is to file return and if he so desires,
to seek reasons for issuing notice and on receipt thereof to file
objections to issuance of notice – Held, yes – Whether where notices
were issued under sections 143 (2) and 148 and all that assessee
was agitating could be submitted by filing reply to said notices,
assessee was unjustified in invoking extra ordinary writ jurisdiction
at notice stage itself – Held, yes.
GKN Driveshafts (India) Ltd. v/s. ITO
(2002) 125 Taxman 963 =(2003) 179 CTR 11 =
173 xation 50 = 259 ITR 19 (SC)
(13) Delay in applying for writ – Assessee waiting for supply of reasons for
initiation of reassessment proceedings – No delay in application –
Constitution of India, Art. 226.
Surat City Gymkhana v/s. Deputy Commissioner of Income Tax
(2002) 254 ITR 733 (Guj)
(14) Existence of alternate remedy ‐ Not an absolute bar for issue of writ –
Participation of petitioner in proceedings not a bar for issue of writ –
Constitution of India, Art. 226.
Surat City Gymkhana v/s. Deputy Commissioner of Income Tax
(2002) 254 ITR 733 (Guj)
(15) Writ – Alternative Remedy ‐ Selection of case for assessment under
s. 143(3) ‐ Petitioner challenging its assessment under s. 143(3) on
the ground that selection of petitioner's case for scrutiny was
contrary to guidelines issued by the CBDT for selection of cases and
that the additions made by AO are contrary to binding decisions of
the first appellate authority rendered in earlier years ‐ Order under
s. 143(3) is subject matter of challenge before the appellate
authority ‐ Relief to set aside the said order cannot be granted by
the Court in a petition under Art. 226 of the Constitution ‐ Said
contention can very well be agitated by the petitioner before the
appellate authority.
Setalvad Bros. v/s. Meerani (M.K) Addl CIT
(2001) 170 CTR 119 = 117 TAXMAN 426(GUJ)
xxxxxxxxxxx
385
386
ADDENDA
HC & SC DIGEST
UPTO MARCH, 2009
P ‐ 2
METHOD OF ACCOUNTING
Change in method of accounting ‐ Accounts maintained on mercantile
system ‐ Difficulty in getting commission due to deterioration in financial
position of textile mills ‐ Change to cash system ‐ Bona fide change to be
accepted by income tax authorities ‐ Income Tax Act, 1961.
Echke Ltd. V/s. CIT
(2009) 310 ITR 44(Guj)
P – 23
APPEAL TO TRIBUNAL ‐ LOW TAX EFFECT
Maintainability ‐ Small tax effect ‐ Tribunal was right in law and on facts in
dismissing the appeal filed by the Revenue on the ground of low tax
effect.
Chandulal Alias Vallabhdas Damji, CIT v/s.
(2008) 15 DTR 219(Guj)
P – 25
APPEAL TO HIGH COURT ‐ SUBSTANTIAL QUESTION OF LAW
(1) Assessment year 1996‐97 – Assessing Officer had made certain
addition to assessee’s income under section 68 – Commissioner
(Appeals) as well as Tribunal deleted said addition – Since it was
apparent that genuineness of transactions and identify of depositors
had been established and nothing had been brought on record to
contradict findings of fact recorded both by Commissioner (Appeals)
as well as by Tribunal, no substantial question of law arose from
impugned order of Tribunal – Held, yes.
Micro Melt (P) LTd., CIT v/s.
(2009)177 Taxman 35(Guj)
(2) Substanitial question of law ‐ Allowance of expenditure on know
how ‐ Transfer of technology and know‐how ‐ Royalty paid as
percentage of net sale price ‐ Whether capital or revenue ‐
Substantial question of law ‐ Income Tax Act, 1961, ss. 35AB, 260A.
Swaraj Engines Ltd., CIT v/s
(2009) 309 ITR 443(SC)
386
387
(3) Substantial question of law ‐ Whether Tribunal was right in cancelling
penalty on ground of benefit of amnesty scheme, though assessee
had revised its returns even after search operations on a number of
occassions ‐ Income Tax Act, 1961, s. 260A, 271(1)(a), 273(2)(a).
Taktawala (C.A) , CIT v/s.
(2009) 309 ITR 340 = (2008)4 DTR 187(SC)
(4) Substantial question of law ‐ Questions whether on revaluation of
assets of firm after conversion to company ‐ There is no transfer and
whether there is no capital gains ‐ Are substantial questions of law ‐
Income Tax Act, 1961, s.260A.
Well Pack Packaging , CIT v/s.
(2009)309 ITR 338(SC)
(5) Allowance of expenditure on know how ‐ Transfer of technology and
know‐how ‐ Royalty paid as percentage of net sale price ‐ Whether
capital or revenue ‐ Substantial question of law ‐ Income Tax Act,
1961, ss. 35AB, 260A.
Swaraj Engines Ltd., CIT v/s
(2009) 309 ITR 443(SC)
(6) Assessment year 1996‐97 – Assessing Officer had made certain
addition to assessee’s income under section 68 – Commissioner
(Appeals) as well as Tribunal deleted said addition – Since it was
apparent that genuineness of transactions and identify of depositors
had been established and nothing had been brought on record to
contradict findings of fact recorded both by Commissioner (Appeals)
as well as by Tribunal, no substantial question of law arose from
impugned order of Tribunal – Held, yes.
Micro Melt (P) LTd., CIT v/s.
(2009)177 Taxman 35(Guj)
P – 35
APPEAL TO TRIBUNAL ‐ DECISION OF C0‐ORDINATE BENCH
Decision of Co‐ordinate Bench ‐ Once the Tribunal comes to the
conclusion that the fact situation in the case before it is identical to the
one obtaining in an earlier matter decided by Tribunal it has no right or
jurisdiction to record a decision entirely contrary to one reached by
another Co‐ordinate Bench on the same set of facts and circumstances.
Affection Investments Ltd. v/s. Asstt. CIT
(2009) 222 CTR 387 = 19 DTR 325(Guj)
387
388
P – 35
APPEAL TO TRIBUNAL
Scope of powers ‐ Depreciation ‐ Allowed earlier ‐ Appellate Tribunal
cannot affect adversely on fresh consideration ‐ Income Tax Act, 1961, ss.
32, 254(1).
Mcorp Global P. Ltd. v/s. CIT
(2009)309 ITR 434 = 178 Taxman 347 = 19 DTR 153(SC)
P – 40
ASSESSMENT – ADDITIONS
(1) Estimation of income ‐ Tribunal having estimated the income of
the assessee on the basis of yield vis‐à‐vis actual consumption
disregarding the figures of assessee's sales and GP rate relating
to past as well as subsequent years and the comparable
instances cited by the assessee it cannot be said that the
Tribunal has correctly decided the issue raised before it ‐ Order of
the Tribunal is set aside and the matter is remanded to the
Tribunal for reconsideration of the whole issue.
Sukhadia Jamnadas Maganlal v/s. ITO
(2008) 13 DTR 113(Guj)
(2) Income derived as trader vis‐à‐vis commission agent ‐ Assessing
authority having accepted the claim of the assessee that he is
acting as a commission agent in the prEceeding year and five of
the ten traders to whom summons were issued having appeared
before the assessing authority and given evidence in favour of
the assessee, no adverse inference could be drawn against the
assessee and it could not be treated as a trader in transactions
involving the remaining five traders simply because they could
not be served with the summons.
Anis Ahmad & Sons v/s. CIT & Anr.
(2008) 2 DTR 81(SC)
P – 48
BUSINESS EXPENDITURE ‐ ACCRUAL OF LIABILITY
(1) Liability for damages arising under arbitration award ‐ Liability to
pay damages was incurred by the assessee on 28th May, 1987 when
the Trade Association made an award for damages for breach of
contract and therefore deduction is allowable in asstt. yr. 1988‐89
notwithstanding the fact that the award was challenged in appeal by
the assessee.
Navjivan Roller Flour & Pulse Mills Ltd. V/s. Dy. CIT
(2009) 20 DTR 290(Guj)
388
389
(2) Salary and wages payable under award ‐ Salary and wages payable
under the award is an admissible deduction, though the said
amount was neither paid to the employees nor it was debited in
the accounts.
Ahmedabad Mfg. & Calico Printing Co. Ltd.,CIT v/s.
(2008) 3 DTR 48(Guj)
P ‐ 50
BUSINESS EXPENDITURE ‐ DISALLOWANCE u/s. 40A(3)
Interest payment in cash to minor daughter of partner ‐ Assessee firm
paying interest in the sum of Rs. 5.15 lakhs in cash on a deposit of Rs. 10
lakhs for four months to the minor daughter of a partner, same was rightly
disallowed by AO under s. 40A(3) in the facts and circumstances of the
case.
Parasram Karamchand, CIT v/s
(2008) 9 DTR 24(Guj)
P – 54
BUSINESS EXPENDITURE ‐ CAPITAL OR REVENUE S. 35E
Expenditure on prospecting etc. for minerals ‐ Applicability of s. 35E vid‐a‐
vis s. 37(1) ‐ High Court having disallowed the claim for deduction of
development and prospecting charges by applying the provisions of s.
37(1) without considering the claim for deduction in the light of s. 35E, the
impugned judgment is set aside and the matter is remitted to the High
Court for considering the appeal afresh on merit.
Rajasthan State Mines & Minerals Ltd. v/s. CIT
(2008) 12 DTR 225(SC)
P ‐ 62
BUSINESS EXPENDITURE ‐ DISALLOWANCE U/S. 43B
(1) Interest on excise duty refund ‐ Refund of excise duty having been
received by assessee under a decree of Trial Court and liability to
repay the amount of refund along with interest having accrued as a
result of appellate decree of High Court such interest liability could
not be said to be a statutory liability hence could not be disallowed
under s. 43B ‐ CIT was therefore not justified in invoking s. 43B in
exercise of his revisional jurisdiction.
Dinesh Mills Ltd. , CIT v/s.
(2008) 3 DTR 235(Guj)
389
390
(2) Electricity duty ‐ Electricity duty is amenable to s. 43B as an
inadmissible item.
Gujarat Urja Vikas Nigam Ltd., CIT v/s.
(2008) 3 DTR 129(Guj)
(3) Royalty ‐ Royalty not being tax provisions of s. 43B were not
attracted in respect of unpaid royalty.
Kutch Minerals, CIT v/s.
(2008) 3 DTR 11(Guj)
P ‐ 69
BUSINESS EXPENDITURE ‐ PROVISION FOR GRATUITY
Provision for gratuity was rightly allowed by the Tribunal considering the
provisions of s. 36(1)(v).
Lok Prakashan Ltd., CIT v/s.
(2008) 2 DTR 360(Guj)
P – 71
BUSINESS EXPENDITURE ‐ INTEREST ON BORROWED CAPITAL
Amount borrowed for expansion of business ‐ Proviso to s. 36(1)(iii)
inserted w.e.f 1st April, 2004 being amendatory and not clarificatory in
nature is operative prospectively and therefore the same could not be
applied to deny the claim for deduction of interest paid by the assessee in
the relevant asst. yr. 1989‐90.
L.K Trust v/s. CIT
(2009) 222 CTR 214 = 19 DTR 284(SC)
P – 78
BUSINESS EXPENDITURE ‐ RESERVE FUND
Transfer to Reserve Fund ‐ Assessment year 1988‐89 – In view of decision
in assessee’s own cae in ITR No. 65 of 1997 dated 10‐3‐2008, Tribunal was
right in holding that transfer to reserve fund could not be treated as a
business expenditure – Held, yes.
Mehsana Districit Co‐op. Milk Producers’ Union Ltd. v/s. CIT
(2009) 177 Taxman 70(Guj)
390
391
P – 78
BUSINESS EXPENSE – ROYALTY
Allowance of expenditure on know‐how ‐ Transfer of technology and know‐
how ‐ Royalty paid as percentage of net sale price ‐ Whether capital or
revenue ‐ Substantial question of law.
Swaraj Engines Ltd., CIT v/s
(2009) 309 ITR 443(SC)
P – 93
CAPITAL GAINS ‐ TRANSACTION NOT REGARDED AS TRANSFER UNDER S.
47(iv)
Transfer of shares to subsidiary company ‐ Question whether the amount
in question represented capital gains and the said capital gains was exempt
under s. 47(iv) having been finally concluded by the High Court decision in
favour of one assessee in another case, and no distinguishing features
being pointed out the same requires to be answered in favour of assessee.
Shahibaug Enterprises (P) Ltd., CIT v/s.
(2008) 2 DTR 251(Guj)
P – 94
CAPITAL GAINS ‐ CAPITAL LOSS
(1) Sale / transfer of right to receive convertible debentures ‐
Depreciation in the value of shares held by the assessee as a result
of the right issue constituted the cost of acquisition of the
entitlement to receive convertible debentures and therefore,
assessee was entitled to claim short‐term capital loss on
renunciation of the rights.
Acropolish Investments Ltd. & Ors., Asstt. CIT v/s
(2009) 222 CTR 383 = 19 DTR 321(Guj)
(2) Sale / renunciation of right shares ‐ Depreciation in the market
value of shares as a result of right offer has to be regarded as cost
of acquisition of right ‐ Loss claimed by assessee on account of
sale / renunciation of right entitlements by arriving at the cost of
acquisition at a figure higher than the cost of original shares is
allowable.
Affection Investments Ltd. v/s. Asstt. CIT
(2009) 222 CTR 387 = 19 DTR 325(Guj)
391
392
P ‐ 97
CAPITAL GAINS
Reference to Valuation Officer ‐ Value estimated by Valuation Officer less
than fair market value shown by assessee as on 1‐4‐1981 ‐ Estimate by
registered valuer ‐ Reference under section 55A not valid ‐ Reference to
Valuation Officer can be made only after Assessing Officer records opinion
that value had been underestimated by assessee ‐ Reference before filing
of return by assessee ‐ Not valid ‐ Income Tax Act, 1961, s. 55A.
Hiaben Jayantilal Shah v/s. ITO
(2009) 310 ITR 31= 6 DTR 203(Guj)
P – 112
COMPANY
Company in which public are substantially interested ‐ Definition ‐
Conditions to be fulfilled ‐ Two parts of sub‐clause (c ) are separate and
independent of each other ‐ Income Tax Act, 1961, s. 2(18)(b)(B)(c ).
Emtici Engineering Ltd., CIT v/s.
(2009)310 ITR 266(Guj)
P – 123
DEDUCTIONS‐s. 80HH
(1) Assessment year 1994‐95 ‐ In order to constitute an industrial
undertaking be it under section 32A or under section 80HH,
important criterion to be applied by Assessing Officer is to identify
item in question, process undertaken by it and resultant output ‐
During relevant assessment year, assessee hospital having made
investment in plant and machinery, claimed deduction under
section 80HH ‐ Assessing Officer rejected assessee's claim holding
that it was not an industrial undertaking ‐ Commissioner (Appeals) as
well as Tribunal allowed assessee's claim ‐ Since there was no
identification of items installed in hospital by Tribunal it was not
possible to express any opinion as to whether assessee was entitled
to deduction under section 80HH ‐ Therefore matter was to be
remitted to Tribunal for deciding case de novo in accordance with
law.
Down Town Hospital Ltd v/s. CIT
(2009) 178 Taxman 221 = 222 CTR 4(SC)
392
393
(2) Conditions required to be satisfied ‐ Assessee a processor of cashew
kernels ‐ Particulars regarding activity undertaken by assessee ‐
activity outsourced to sister concerns and whether sister concerns
are located in backward areas not given ‐ Assessee not entitled to
claim deduction in respect of profits from processing of cashew ‐
Income Tax Act, 1961, s. 80HH.
Pratap ( R) , CIT v/s.
(2009) 310 ITR 405(SC)
P – 129
DEDUCTION ‐s. 80HHC
(1) Special deduction ‐ Profits from computation ‐ Sales made through
export houses ‐ Can be included if disclaimer certificate produced ‐
No factual finding ‐ Fresh computation to be made ‐ Supreme Court ‐
Matter remanded ‐ Income Tax Act, 1961, s. 80HHC.
Janatha Cashew Exporting Co. V/s. CIT
(2009)309 ITR 440 = (2008) 1 DTR 46(SC)
(2) Transfer of right of exploitation of films outside India ‐ Telecasting
rights of movies recorded on beta‐cam tapes being articles of trade
and commerce fall in the category of merchandise and "lease" is
included in the meaning of word "sale" under rr. 9A and 9B and
therefore foreign exchange earned by transferring the right of
exploitation of the films outside India by way of lease is entitled to
deduction under s. 890HHC.
Suresh B., CIT v/s.
(2009) 222 CTR 513 = 20 DTR 93 = 178 Taxman 457(SC)
(3) Interest income ‐ In the absence of any finding as to whether the
profits of business of the assessee computed under the head "Profits
and gains of business or profession" include interest on FDRs
received by the assessee, the question as to whether the interest of
FDRs is to be reduced by the interest paid on borrowings relatable
to the business of exports for the purpose of computation of
deduction under s. 80HHC is returned unanswered .
Themis Chemicals Ltd., CIT v/s.
(2008) 6 DTR 172(Guj)
393
394
P – 138
DEDUCTION ‐ s. 80‐I
(1) Special deduction under section 80‐I ‐ Employment of specified
number of employees ‐ Finding in assessee's own case that workers
were employees for purposes of section 80‐I ‐ Dedction to be allowed
‐ Income tax Act, 1961, s. 80 ‐I.
Prithviraj Bhoorchand, CIT (Asst.) v/s.
(2009)310 ITR 88(Guj)
(2) Interest income ‐ Interest earned on securities kept with the
Electricity Department and interest earned on FDRs kept with bank
as margin money for obtaining letters of credit for procurement of
raw materials are not includible in the profits and gains derived
from the industrial undertaking for the purpose of computation of
deduction u/s. 80‐I.
Arat Electro Chemicals Ltd., Dy. CIT v/s.
(2009) 17 DTR 255 (Guj)
(3) Service Charges ‐ Whether qualify for deduction ‐ Assessee
manufacturing urea and ammonia ‐ Supplying ammonia gas to heavy
water plant located in its premises and receiving service charges ‐
Ammonia gas returned to assessee after extracting deuterium ‐
Whether there was interdependence ‐ Appellate Tribunal rejecting
claim for allowance owing to paucity of facts ‐ Supreme Court ‐
Matter remanded to Appellate Tribunal for reconsideration after
permitting to produce relevant evidence ‐ Income Tax Act, 1961, s.
80‐I.
Krishak Bharati C‐operative Ltd. v/s. Jt.CIT
(2009) 310 ITR 400(SC)
(4) Adjustment of deduction under s. 32AB ‐ Deduction under s. 32AB
has to be allowed before computing deduction under ss. 80HHA and
80‐I ‐ Adjustment of losses of another unit ‐ Claim under ss. 80HHA
and 80‐I is not allowable from the profits of Unit 1 without
considering the loss of Unit II, without ascertaining as to whether
the two units are separate ‐ Tribunal directed to ascertain the facts
of the present case and adjust its decision in tight of the
observations as well as in light of the decision in the case of CIT v/s.
Canara Workshops (P) Ltd. (1986) 58 CTR 108 : (1986) 161 ITR
320(SC).
Madhu Silk Textiles, CIT v/s.
(2008) 12 DTR 307(Guj)
394
395
(5) Allowability ‐ Small scale industrial undertaking ‐ Tribunal having not
considered the amended provisions of cl. (b) of the Explanation to s.
80HHA and the appropriate notification of the Government of India
under s. 11B of the Industrial (Development and Regulations) Act,
1951 for the purpose of determining whether the industrial
undertaking of the assessee fulfilled the requisite conditions for
being treated as a small scale industrial undertaking for the purpose
of s. 80‐I the question whether assessee is eligible for deduction
under s. 80‐I is left unanswered.
Vikshra Trading & Investments Ltd.,CIT v/s.
(2008) 7 DTR 257(Guj)
(6) Machineries previously used vis‐à‐vis taken on lease ‐ Tribunal
having recorded categorical finding that the machineries and plant
installed in the assessees' unit had been earlier used by the lessor
company and the lease of said machineries by the latter amounts to
transfer from that company to the assessee company the conditions
laid down in sub. s. (2) of s. 80‐I were not fulfilled and, therefore the
assessee company was not entitled to deduction under s. 80‐I.
Himson Fadis Machinery (P) Ltd. v/s. CIT
(2008) 6 DTR 284(Guj)
P – 139
DEDUCTION u/s. 80J ‐ CAPITAL COMPUTATION
Amount of work in progress ‐ Tribunal was right in law in directing AO to
allow deduction u/s. 80J on the amount of work in progress.
Ahmedabad Mfg. & Calico Printing Co. Ltd.,CIT v/s.
(2008) 3 DTR 48(Guj)
P – 141
DEDUCTION U/s. 80P(2)(I)
Allowability ‐ Providing credit facilities to members ‐ High Court having
decided the matter under confusion resulting from mixing up facts of
some other case impugned order of High Court set aside and matter
remanded to High Court for fresh consideration in the light of Madras Auto
Rickshaw Drivers v/s. CIT (2002) 173 CTR (SC) 77, (2001) 10 SCC 175.
Modern Engineers Construction Co‐operative Society Ltd., Cit v/s.
(2008)12 DTR 198(SC)
395
396
P – 146
DEPRECIATION – ALLOWANCE
Issue came up for consideration before High Court was as to whether
Tribunal was right in holding that depreciation on plant and machinery was
not allowable on ground that assessee had not manufactured goods during
relevant previous year ‐ Assessee's case was that despite suspension of its
business operation, it was still entitled to claim depreciation on ground of
passive user ‐ High Court however, without going into said aspect dismissed
assessee's appeal ‐ On facts impugned order was to be set aside and
matter was to be remitted back to High Court for a fresh decision in
accordance with law.
Nirma Credit & Capital Ltd. v/s. Asstt. CIT
(2009) 177 Taxman 416(SC)
P – 154
DEPRECIATION
(p) WRITTEN DOWN VALUE
Assessment years 1988‐89 to 1991‐92 – Words ‘depreciation actually
allowed’ as occurring in section 43(6)(b) would mean depreciation actually
deducted in arriving at taxable income of assessee – Therefore in context
of composite income depreciation deducted in arriving at taxable income
alone can be taken into account and not depreciation deducted for arriving
at composite income – Since in case where rule 8 applies income which is
brought to tax as business income is only 40 per cent of composite income
only 40 per cent of depreciation allowed at prescribed rate is required to
be taken into account because that is depreciation ‘actually allowed’.
Doom Dooma India Ltd., CIT v/s.
(2009) 178 Taxman 261= 222 CTR 105 = 19 DTR 177 = 310 ITR 392(SC)
P – 162
DIVERSION BY OVER‐RIDING TITLE
Share of partially partitioned members in income of HUF business ‐ In
view of partial partition of HUF consisting of Karta, his wife and minor
son recognised under s. 171 giving one‐third share to each member, even
after the business became proprietary concern of HUF after dissolution of
partnership 2/3rd of income from business shall divert to the wife and son
by overriding title and karta, in his individual status, was liable to to be
assessed in respect of 1/3rd share only.
Thakar P.V v/s. CIT
(2008) 11 DTR 31(Guj)
396
397
P – 163
DOUBLE TAXATION RELIEF ‐ AGREEMENT WITH FOREIGN COUNTRY
(1) Liability to tax vis‐à‐vis payment of tax ‐ For allowability of relief
under DTAA with foreign country it is not necessary for the assessee
to furnish proof for payment of tax ‐ Liability to tax is not the same
as payment of tax.
Heinrich Wetting, CIT v/s.
(2009) 222 CTR 83(Guj)
(2) Payment of tax aboard ‐ Relief under DTAA between India and U.K
was rightly granted to the assessee by the Tribunal based on
assessment order made by AO for asst. yr. 1984‐85 after verification
of claim made by the assessee regarding deduction of tax at source.
Peter Max Washylik, CIT v/s.
(2009) 222 CTR 85 = 19 DTR 199(Guj)
P – 192
INCOME FROM UNDISCLOSED SOURCES – ADDITION
(1) Bogus purchases ‐ Department having accepted purchases made by
assessee could not have assumed that the assessee had inflated
purchases and made addition more so when the incriminating
statement of a third party on which addition was based was not put
to assessee.
Coronation Flour Mills v/s Asstt. CIT
(2009) 20 DTR 312(Guj)
(2) Cost of construction ‐ Addition under s. 69B was rightly made in the
hands of assessee firm in relation to the difference in cost of
construction as recorded in the books of account and determined by
Department Valuer notwithstandng the fact that the partners had
disclosed the entire difference in their hands under the Amnesty
Scheme after difference was estimated by the Departmental Valuer.
Ambica Corpn. , CIT v/s.
(2008) 6 DTR 115(Guj)
397
398
(3) Cash credits in account of person from whom assessee made
purchases ‐ Amount by cash credits would be an allowable deduction
under section 37 ‐ Proviso to section 69C inserted with effect from of
April 1, 1999 ‐ Proviso not applicable to assessment year 1987‐88 ‐
Amount covered by credits not assessable as income of assessee –
Income Tax Act, 1961, s. 69C.
Krishna Textiles v/s. CIT
(2009)310 ITR 227(Guj)
P – 199
INTEREST TAX
Chargeable interest ‐ Interest on loans and advances ‐Interest on
Government securities ‐ Interest earned by the assessee bank on
Government securities is not liable to be assessed under s. 2(7) of the
Interest tax Act ‐ Matter is remanded to the Tribunal to examine the
factual position as to whether the interest involved in the present case is
on Government securities.
ICICI Bank Ltd., CIT v/s. ‐ (2008) 14 DTR 246(SC)
Industrial Development Bank of India Ltd CIT v/s. ‐ (2008) 14 DTR 244(SC)
The Ratnakar Bank Ltd., CIT v/s. ‐(2008) 14 DTR 241(SC)
P – 203
INTEREST U/S. 234A AND 234B – CHARGEABILITY
Waiver or reduction ‐ Returns having been filed only after notice under s.
148 waiver of interest was rightly denied ‐ Matter remitted to AO to
ascertain whether assessee was co‐owner of the acquired land for which
compensation along with interest was received and if so whether the
interest received needed apportionment among co‐owners.
Sendhaji Amraji Thakore v/s. Chief CIT & Anr.
(2009) 20 DTR 97(Guj)
P – 203
INTEREST u/s. 234B & 234C
Chargeability ‐ Positive income ‐ Assessee having admittedly returned
positive income in the relevant year, Tribunal was not correct in deleting
the interest under ss. 234B and 234C merely by relying on the facts of an
earlier year ignoring the fact that the assessee suffered a loss and was not
required to pay advance tax in the said earlier year.
Vikshra Trading & Investments Ltd.,CIT v/s.
(2008) 7 DTR 257(Guj)
398
399
P – 222
K V S S
(1) Belated filing of revision application and appeals without pre‐
payment of taxes ‐ Designated Authority under KVSS, 1998, had no
jurisdiction to go into the question of validity of appeals/revision and
as appeals / revision whether valid or invalid were actually pending
on the date of filing declaration, same had to be entertained.
Apurv R. Hathi v/s. J.G Arora or Successor Designated Authority
(2008)11 DTR 342(Guj)
(2) Maintainability of declaration ‐ Order under s. 245D(4) in the case of
firm and pendency of appeal ‐ Embargo provided for in s. 95(I)(b) of
Finance (No. 2) Act, 1998, is only with regard to the share of income
from the firm in which the order under s. 245D(4) is passed and it
does not preclude any of the partners from approaching the
Designated Authority for settlement of their other disputes ‐ Once
petition is filed and it is pending before the Court, the petitioner
cannot be prevented from approaching the Designated Authority
under KVSS simply because the Court has not issued rule.
Murlidhar Thakurmal v/s. L.K Koolwal or His Successor in Office
(2008) 11 DTR 308
(3) (3) Order under s. 245D(4) in the case of firm ‐ AO having given effect
to the order of Settlement Commission under s. 245D(4) in the case
of firm by rectifying under s. 155 on 18th Sept. 1998 the assessment
of partner there were no tax arrears in the case of partner as on
31st March, 1998 and therefore declaration of partner under KVSS,
1998 was rightly rejected by the Designated Authority under s.
95(i)(b) of the Finance (No.2) Act, 1998.
Manilal Kunvarji Shah v/s. J.G Arora, Designated Authority & Anr.
(2008)11 DTR 326Guj)
P – 233
LOSS ‐ CARRY FORWARD AND SET OFF
Extension of time ‐ Assessee was entitled to presume that the applications
filed for extension of time for filing return have been accepted in the
absence of any order either accepting or rejecting such applications and,
therefore assessee having filed the return within the period for which
extension was sought is entitled to carry forward the business loss.
Gandhinagar Bottling (P) Ltd., CIT v/s.
(2008) 2 DTR 367(Guj)
399
400
P – 255
PENALTY ‐ CONCEALMENT OF INCOME
(1) Amnesty scheme ‐ Search and seizure ‐ Effect of order of CBDT dated
14‐2‐1986 and Circular No. 451 dated 17‐2‐1986 ‐ Search operations
‐ No evidence of undisclosed income ‐ Revised return disclosing
additional income filed voulntarily and taxes paid for assessment
years 1982‐83 to 1985‐86 ‐ Nore than one revised return could be
filed ‐ Penalty could not be imposed.
Taktawala (C.A) , CIT v/s
(2009) 309 ITR 417(Guj)
(2) Amount assessed in hands of third person ‐ Relevant in determining
concealment‐Matter remanded ‐ Income Tax Act, 1961, s.271(1) (c ).
Patel Chemicals Works v/s. Assessing Officer
(2009) 309 ITR 450(Guj)
(3) Assessment at nil income ‐ Explanation 4 to s. 271(1)(c) is
clarificatory and applicable retrospectively and therefore penalty
could be levied for asst. yr 1996‐97 even though there was no
positive assessed income ‐ Regarding penalty for concealment
matter remitted to Tribunal.
Moser Baer India Ltd., CIT v/s.
(2009) 222 CTR 213 = 19 DTR 283(SC)
(4) Disclosure of additional income in revised return ‐ Assessee having
made a disclosure of Rs. 54,71,463 only after the statement of its
chairman and managing director was recorded by Dy. Director of IT
(Inv) followed by another disclosure of Rs. 54 lacs dividing it into
three segments of Rs. 18 lacs each in the three relevant
assessment years and filed yet another revised return by way of a
letter declaring a further sum of Rs. 78,56,613 it cannot be
accepted that the revised returns for all the three years were filed
voluntarily in good faith and therefore there was concealment of
income and levy of penalty under s. 271(1)( c) was justified.
LMP Precision Engg. Co. Ltd. v/s. Dy. CIT
(2009)20 DTR 294(Guj)
400
401
P – 255
PENALTY u/s.271D & 271E ‐ CONTRAVENTION OF ss. 269SS & 269T
Transactions between sister concerns ‐ Tribunal having deleted penalty
under ss. 271D and 271E observing that transactions between sister
concerns are not covered by either provisions of s. 269SS or s. 269T and
that the default if any was of venial nature, no interference is called for.
Shree Ambica Flour Mills Corpn., CIT v/s.
(2008) 6 DTR 169(Guj)
P – 265
RETURN OF INCOME
Default in furnishing return – Interest – Nature of – Not in the nature of
penalty – Interest is to compensate Revenue when tax not deposited by
due date – Income Tax Act, 1961, s. 234A.
Pranoy Roy, CIT v/s. &
India Meters Ltd., CIT v/s
(2009) 309 ITR 231 = 222 CTR 6 = 19 DTR 102(SC)
P – 267
PENALTY u/s.271B ‐ DELAY IN FILING AUDIT REPORT
Reasonable cause ‐ Tribunal was justified in deleting penalty under s. 271B
on the ground that for asst. yr. 1985‐86, the first year of requirement of
tax audit under s. 44AB, a liberal approach was to be adopted.
Kashiram Textiles Mills (P) Ltd., CIT v/s.
(2008) 2 DTR 389(Guj)
P – 269
PERQUISITES
Rule 3 as amended by Income Tax (Twenty second Amendment) Rules,
2001 is in line and consistent with provision of section 17(2)(ii) and is also
not ultra vires article 14 of Constitution of India.
BHEL Works Union v/s. Union of India
(2009) 178 Taxman 1(SC)
401
402
P ‐ 270
PRACTICE ‐ APPEAL TO HIGH COURT ‐ CLEARANCE FROM COMMITTEE ON
DISPUTES
Maintainability ‐ Clearance from Committee on Disputes ‐ No rigid time
frame is indicated for making reference to the Committee on Disputes for
seeking its clearance for filing an appeal ‐ Committee cannot decline to
deal with the matter on the ground of belated approach ‐ In appropriate
cases Court can refuse to interfere where there is any indifference and
lethargy.
Oriential Insurance Co. Ltd., CIT v/s.
(2008) 10 DTR 113 (SC)
P – 271
PRECEDENT
Decision of Co‐ordinate Bench ‐ Once the Tribunal comes to the
conclusion that the fact situation in the case before it is identical to the
one obtaining in an earlier matter decided by Tribunal it has no right or
jurisdiction to record a decision entirely contrary to one reached by
another Co‐ordinate Bench on the same set of facts and circumstances.
Affection Investments Ltd. v/s. Asstt. CIT
(2009) 222 CTR 387 = 19 DTR 325(Guj)
P – 281
REASSESSMENT ‐ FULL AND TRUE DISCLOSURE
(1) Notice after expiry of four years ‐ In the absence of any averment of
the Revenue that there was any omission or failure on the part of
the assessee to disclose fully and truly all material facts relevant for
the assessment of the assessment year in question impugned
notice under s. 148 issued beyond a period of four years from the
end of the relevant assessment year is bad in law without
jurisdiction.
Nikhil K. Kotak v/s. Mahesh Kumar AO
(2008) 10 DTR 20(Guj)
402
403
(2) Notice after expiry of four years ‐ AO having made assessment under
s. 143(3) after taking into consideration the relevant details of
loans and advances filed by the assessee giving particulars and
purpose of the advances made by the assessee notice under s. 148
issued after the period of four years from the end of the relevant
assessment year is not valid.
Jagdishbhai Nanubhai Tekrawala, Asst.CIT v/s.
(2008) 12 DTR 270(Guj)
(3) Notice after expiry of four years ‐ Assessment having been
completed under s. 143(3) after all necessary details were made
available to the AO pursuant to notices issued under ss. 142(1) and
143(2), it cannot be said that there was any omission or failure on
the part of the assessee to disclose material facts truly and fully and
therefore impugned notice under s. 148 issued by the AO after a
period of four years from the end of the relevant assessment year
was without jurisdiction.
Priyanka Carbon & Chemical Industries (P). Dy. CIT
(2008) 15 DTR 31(Guj)
(4) Notice after expiry of four years ‐ Once the excess stock of finished
goods found during the search was considered to be a part of
suppressed sales and was given set off from the addition made by
the AO on account of low yield of carbon black while framing the
assessment it cannot be said that there was any failure on the part
of the assessee to disclose fully and truly all material facts relevant
for the assessment and, therefore impugned notice under s. 148
issued beyond a period of four years from the end of the relevant
assessment year is quashed.
Gujarat Carbon & Industrial Ltd. v/s. Jt. CIT
(2008) 9 DTR 281 (Guj)
(5) Notice after expiry of four years ‐ There being no failure on the part
of assessee to make full and true disclosure of all material facts,
assessments made under s. 143(3) allowing deduction under ss.
80HH and 80‐I as per the then prevailing law could not be
reopened after expiry of four years from the end of the relevant
assessment years on the basis of subsequent decision of Supreme
Court.
Austin Engineering Co. Ltd. v/s. Jt. CIT
(2008) 9 DTR 268(Guj)
403
404
P – 284
REASSESSMENT‐GENERAL
Notice ‐ Association of persons ‐ Lottery ticket ‐ Prize winning ticket
discharged by fifteen individuals ‐ Act not involving any management ‐ One
individual showing one fifteenth of his share in return ‐ Notice beyond four
years to individual on ground that he and fourteen others functioned as an
association of persons ‐ No obligation in law on an entity by name of that
individual and fourteen others to tender a return of income ‐ No failure or
omission on part of individual to file return ‐ That individual cannot be
treated as an assessee for issuing notice ‐ Notice invalid ‐ Income Tax Act,
1961, ss. 147, 148.
Kanchanlal Maganlal Kapadia v/s. ITO
(2009) 310 ITR 167=177 Taxman 211= (2008) 9 DTR 290(Guj)
P – 285
REASSESSMENT – LIMITATION
Computation ‐ Notices under s. 148 having been issued on 25th July, 1985,
four years' period as prescribed under s. 153(2)(a) for making reassessment
under s. 147(a) will reckon from the end of asst. yr. 1985‐86 i.e from 31st
March, 1986, hence reassessments made on 15th March, 1990 were well
within limitation.
Ambica Corpn., CIT v/s.
(2008) 6 DTR 115(Guj)
P – 289
REASSESSMENT ‐ REASON TO BELIEVE
(1) Absence of material or rational belief ‐ AO was not justified in
reopening the assessment on the ground that income to the extent
of amount of discount given by assessee had escaped assessment.
Gujarat Narmada Valley Fertilizers Co. Ltd. v/s. Dy. CIT
(2009) 20 DTR 165(Guj)
(2) Absence of material or rational belief ‐ AO having not stated in the
recorded reasons that the gross commission receipts supposedly
received by the assessee are the income chargeable to tax and
there being no material which could lead the AO to believe that
any income has escaped assessment the impugned notice under
s. 148 is quashed and set aside .
Shankarlal Nagjit & Co. V/s. ITO
(2009) 20 DTR 116(Guj)
404
405
P – 291
RECOVERY ‐ ATTACHMENT AND SALE OF IMMOVABLE PROPERTY
Validity of proclamation and public notice ‐ There being a variation
between proclamation made under rr. 52 and 53 read together and the
public notice issued and published under r. 54(2) the public notice which
followed the proclamation as also consequent auction sale cannot be
sustained.
Shatrushalyasinhji Digvijaysinhji Jadeja v/s. CIT
(2009) 20 DTR 128(Guj)
P – 294
RECTIFICATION ‐ MISTAKE APPARENT
Double benefit of set off of capital gains ‐ There was not mistake apparent
rectifiable under s. 154 in assessment where appreciation on trucks was
added after setting off of short term capital gains offered for taxation.
Chandulal Alias Vallabhdas Damji, CIT v/s.
(2008) 15 DTR 219(Guj)
P – 296
RECTIFICATION U/S. 254(2) ‐ APPEAL TO TRIBUNAL – POWERS
Review or recall of the order ‐ If the Tribunal has committed an inadvertent
error which results in injustice to one or the other side, the Tribunal is
entitled to recall the order in given set of facts and circumstances of the
case and decide the matter in accordance with law facts and evidence on
record.
Nirajan K. Zaveri , CIT v/s.
(2009) 20 DTR 153(Guj)
P – 300
REFERENCE ‐ QUESTION OF LAW
Issued already concluded by earlier decision ‐ Question whether the
amount in question represented capital gains and the said capital gains
was exempt under s. 47(iv) having been finally concluded by the High Court
decision in favour of one assessee in another case, and no distinguishing
features being pointed out the same requires to be answered in favour of
assessee.
Shahibaug Enterprises (P) Ltd., CIT v/s.
(2008) 2 DTR 251(Guj)
405
406
P – 312
REVISION ‐ ERRONEOUS AND PREJUDICIAL ORDER
Deduction of interest on borrowings ‐ Tribunal having found in an earlier
order that the amounts borrowed by the assessee were utilized for
renovation of cinema hall which is admittedly a part and parcel of the
assessee's business of exhibiting films, deduction of interest debited to P &
L a/c. did not render the assessment order erroneous and prejudicial to
the interest of the Revenue and the Tribunal was justified in setting aside
the order passed by the CIT under s. 263 on the issue of deduction of
interest.
L.N Talkies, CIT v/s.
(2008) 2 DTR 401(Guj)
P – 312
REVISION ‐ POWERS TO REVISE
Order of Assessing Officer partially disallowing claim under section 80‐I –
Commissioner (Appeals) accepting claim – Commissioner taking different
view – Not a case of an order erroneous and prejudicial to Revenue –
Commissioner could not withdraw special deduction under section 80‐I in
revision proceedings – Income Tax Act, 1961, s. 263.
Nirma Chemical Works P. Ltd., CIT v/s.
(2009) 309 ITR 67(Guj)
P – 328
SEARCH AND SEIZURE ‐ AUTHORISATION U/S. 132(1)
Powers of Addl. Director of IT (Inv.) ‐ In view of the fact that CIT in exercise
of powers under s. 132B has released cash jewellery and bnooks of
accounts seized during search impugned the question whether the Addl.
Director of IT (Inv.) has the requisite jurisdiction to authorize any officer
to effect search and seizure in purported exercise of his power conferred
upon him under s. 132(1) has become infructuous and not examined.
Nalini Mahajan (Dr.) & Ors. , Director of IT & Ors.
(2009) 222 CTR 35 = 19 DTR 50(SC)
406
407
P – 329
BLOCK ASSESSMENTS IN SEARCH CASES
(1) Undisclosed income, computation of ‐Block period 1‐4‐1986 to 11‐
10‐1996 ‐ Only brought forward losses of past years under Chapter
VI and unabsorbed dipreciation under section 32(2) are to be
excluded while aggregating total income or loss of each previous
year in block period and set of loss suffered in any of previous years
in block period against income assessed in other previous years in
block period is not prohibited.
Lingamurthy (E.K) v/s. Settlement Commissioner (IT & WT)
(2009) 178 Taxman 116 = 222 CTR 1 = 19 DTR 99 (SC)
(2) Proceedings under s. 158BD ‐ No material showing undisclosed
income of partner of the firm having been detected during search
of the firm, there could not be any basis for satisfaction for
proceeding under s. 158BD against the partner ‐ Mandatory
requirement for proceeding under s. 158BD not having been
fulfilled notice under 158BD quashed.
Nivedita M. Makwana v/s. P.M Shukla
(2008) 11 DTR 225(Guj)
(3) Procedure for – For issuing notice under section 158BC revenue has
to show in first instance that entity to whom a notice under section
158BC is sought to be issued is an entity or person in whose case
search proceedings under section 132 have been conducted.
Jayantilal Damjibhai Soni v/s. Director of Investigation
(2009) 177 Taxman 357(Guj)
P – 335
SEARCH AND SEIZURE ‐ AMNESTY SCHEME
Effect of order of CBDT dated 14‐2‐1986 and Circular No. 451 dated 17‐2‐
1986 ‐ Search operations ‐ No evidence of undisclosed income ‐ Revised
return disclosing additional income filed voluntarily and taxes paid for
assessment years 1982‐83 to 1985‐86 ‐ More than one revised return
could be filed ‐ Penalty could not be imposed.
Taktawala (C.A) , CIT v/s
(2009) 309 ITR 417(Guj)
407
408
P – 336
SEARCH ‐ SUR CHARGE LIABILITY
Search cases ‐ Undisclosed income of block period April 1, 1990 to July 3,
2000 ‐ Search conducted on April 6, 2000 I.e prior to June 1, 2002 ‐ Finance
Act, 2001 applicable ‐ Surcharge leviable ‐ Income Tax Act, 1961, ss. 113,
158BC ‐Nature of ‐ DistiNct charge not dependent on liability to pay
income tax.
Rajiv Bhatara, CIT v/s.
(2009) 310 ITR 105 = 178 Taxman 285= 222 CTR 209 = 19 DTR 225(SC)
P – 336
SETTLEMENT COMMISSION
(1) Order of Settlement Commission ‐ Interference by Court ‐ Assessee
having filed written submissions after a period of three months
from the date fixed for final hearing no interference is called for
with the order of the Settlement Commission under s. 245D(4).
Mahavir Inductomelt (P) Ltd. v/s. ITSC
(2008) 13 DTR 113(Guj)
(2) Scope of judicial review ‐ Settlement Commission having heard
both the parties at length, considered the material produced
before it and dealt with all the respective contentions of both the
parties while passing the impugned order of admission under s.
245D(1), and taken adequate care to finally determine the
additional income in the hands of the assessee group and the tax
payable after appreciating the facts and evidence on record in
passing the final order under s. 245D(4), no interference is
warranted.
Friends & Friends Co. , CIT v/s.
(2008) 9 DTR 225(Guj)
P – 344
TDS ‐ u/s. 192
Exemption in respect of LTC vis‐a‐vis evidence of actual utilization of
amount ‐ Assessee employer is under no statutory onligation to collect and
examine the supporting evidence to the declaration submitted by an
employee to the effect that he has actually utilized the amount(s) paid
towards leave travel concession / conveyance allowance for the purposes
of TDS under s. 192.
Larsen & Toubro Ltd., CIT v/s
(2009) 18 DTR 163(SC)
408
409
P – 348
TRIBUNAL
(1) Appellate Tribunal ‐ Scope of powers‐ Allowed earlier ‐ Appellate
Tribunal cannot afect adversely on fresh consideration.
Mcorp Global P. Ltd. v/s. CIT
(2009)309 ITR 434= 178 Taxman 347 = 19 DTR 153(SC)
(2) Scope of powers ‐ Depreciation ‐ Allowed earlier ‐ Appellate Tribunal
cannot affect adversely on fresh consideration ‐ Income Tax Act,
1961, ss. 32, 254(1).
Mcorp Global P. Ltd. v/s. CIT
(2009)309 ITR 434 = 178 Taxman 347 = 19 DTR 153(SC)
P – 356
UNEXPLAINED EXPENDITURE
Assessment year 2003‐04 – Assessing Officer while confirming assessment
under section 143(3) disallowed / added back a sum towards outstanding
creditors for freight under section 69C – According to Assessing Officer
expenses claimed and shown as outstanding towards freight charges
payable could not be treated as real and genuine as assessee had failed
to discharge onus by producing creditors for verification – Commissioner
(Appeals) confirmed order of Assessing Officer – Tribunal however,
deleted impugned addition – On further appeal it was noticed that
Tribunal observed in its order that assessee produced vouchers in which
name of contractors from whom vehicles were hired had been mentioned
‐ Though said vouchers were signed by recipients and were verifiable from
parallel record maintained by assessee, Assessing Officer rejected vouchers
only on basis of vouchers being internally generated – Tribunal further
found that complete details of tax deducted at source qua payments made
including Permanent Account Numbers names and address of parties were
available and entries in regular books of account were made on a day to
day basis in a chronological manner – It was also found by Tribunal that
identical method of accounting and maintenance of record had been
accepted in earlier years and higher claim of unpaid transport charges had
been accepted in assessment proceedings under section 143(3) – Finally
Assessing Officer had not been able to produce a single incident to
establish conjecture of payments having been made in cash – Whether in
409
410
view of aforesaid findings no legal infirmity existed in impugned order of
Tribunal so as to warrant interference – Held, yes.
Hylam Securities & Finance (P) Ltd., ITO v/s.
(2009) 178 Taxman 317(Guj)
P – 358
VALUATION OF CLOSING STOCK
Notional brokerage payable on closing stock of debentures ‐ Assessee is not
entitled to reduce the amount of notional brokerage that would be payable
on the sale of debentures for working out the value of closing stock of such
debentures while valuing the debentures on the basis of market value or
cost, whichever is less.
Gujarat State Investments Ltd., Dy CIT v/s.
(2008) 14 DTR 71(Guj)
P ‐ 369
WEALTH TAX – REASSESSMENT
Assessment years 1990‐91 and 1992‐93 ‐ In absence of reasons recorded
notice issued under section 17 for reopening completed assessments was
to be quashed .
Krishnadas Govinddas Parikh v/s. WTO
(2009) 177 Taxman 369(Guj)
P 372
WEALTH TAX ‐ REFERENCE TO VALUATION – S. 16A
Assessment years 1983‐84 to 1993‐94 – Action of Assessing
Officer in making reference under section 16A to valuation cell for
assessment years for which no assessment was pending could not be
sustained.
Krishnadas Govinddas Parikh v/s. WTO
(2009) 177 Taxman 369(Guj)
P – 376
WORDS & PHRASES
'Depreciation actually allowed' as occurring in section 43(6)(b).
Doom Dooma India Ltd., CIT v/s.
(2009) 178 Taxman 261 = 222 CTR 105 = 19 DTR 177 = 310 ITR 392(SC)
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410