Ready reference of case laws relevant for November 2015

Sl No.

Case law Reference

Judgment

Basic Concept

1.        

Softworks Computers Pvt. Ltd.(F)

(Relating to remission of liability)

The remission of liability in respect of advance accepted for the purpose of relocating the office is not a revenue receipt. The same is not chargeable to tax being the nature of capital receipt as the advance was accepted for acquiring capital asset i.e. new office.

2.        

Handicrafts and handlooms export corporation of India Ltd.(F)

(Relating to subsidy from holding company to subsidiary company)

The holding company forwarded the subsidy to its subsidiary as the same was incurring loss year by year. The High Court held that the same is capital receipt not chargeable to tax since the purpose which determines the nature of receipt is to make subsidiary assesse company to recoup its business.

( If the same has been forwarded by the reason by trading business, the same would be considered as trading receipt chargeable to tax)

3.        

Rassi cement Ltd.(A)

(Related to subsidy)

The power Subsidy received by the assesse from the state government  on the basis of actual power consumption should be treated as trading(revenue) receipt not a capital receipt.

(Had it been either before commencement of production or on account of capital investment made by the assesse, the same should have been capital receipt not chargeable to tax in the hand of assesse.)

4.        

Rasoi Ltd.(F)

(Related to subsidy)

The assesse received certain subsidy from authorities for the expansion and extension of business, the amount of same was 90% of sales tax paid. The High court held that the receipt is a capital receipt in the hand of the assesse since this is one time subsidy received for the purpose of capital expansion. It is immaterial that the amount derived is based on the percentage of sales tax paid during the year.

5.        

Sundaram finance Ltd. (A)

(Related to sales tax deposit with himself)

The NBFC assesse Company collected certain deposits from its leasing and hire-purchase customer on account to protect him from the liability of sales tax which is under dispute. The same was neither deposited to tax authorities nor kept in separate bank account but was the same was used for the purpose of business. On account of such fact the supreme court held the changeable to tax in the hand of the assesse.    

6.        

Saurastra Cement Ltd.

(F)

(Related to Liquidity damage of capital nature)

The assesse had entered an agreement with the supplier for purchase of cement manufacturing plant with a clause of liquidity damage at rate of 5%. The assesse received certain sum of money in respect of same clause. The Assessing office treated it as a revenue receipt. The Appellate tribunal upheld the same as capital receipt not chargeable to tax in the hand of assesse.

(Had the liquidity damage would be on account of recurring/trading activity, the same would be treated as revenue receipt chargeable to tax)

7.        

Jagatjit industries Ltd.(F)

(Related FEF on share capital raised in foreign country)

The FEF on share capital in a capital receipt not chargeable to tax. It is immaterial that the utilization of the fund raised via share capital is capital nature or for working capital need of the business.

8.        

Kisansahkari Chini Mills Ltd.(F)

(Related to payment of loan taken for the capital expansion)

The assesse claimed incentive under a scheme formulated by central government for repaymentof loan from financial institution taken for the setting up and expansion of the plant. As per high court decision the same is treated as capital receipt not chargeable to tax in the hand of the assesse.      

Income which do not form part of Total Income

9.        

Kribhco (F)

(Related to income do not form part of Total income)

If the assesse has included certain income in his total income and claimed deduction under chapter VI A. Then no disallowance can be made under section 14A in respect of such income. 

Charitable Trust

10.    

KarimangalamOnriyaPengalSempuAmaipu Ltd.(A)

(Relating to deemed registration of charitable trust on expiry of 6 months)

Where the period of six months from the date of submission of the application for the registration has been expired, the trust is not said to be deemed registered. The word “shall” used in section 12AA(2) is directory is nature, not concluded to be mandatory. 

11.    

MeenakshiAmmaEndownment trust(F)

(Relating to registration of charitable trust.)

Where the assesse trust has not commenced any charitable activity before filing the application for the registration of charitable trust, the registration can’t be denied on such fact that no any charitable activity has been commenced by the trust yet.

12.    

Bagri foundation(F)

(Related to contribution to other trust)

The assesse has shown NIL in return filed by donating total fund to the corpus of another trust u/s 11(1)(a). However the assesse has donated some accumulated fund out of past income (15% of unconditional exemption), the same has been added as income by A.O. by applying explanation to sec 11(2). The same is quashed by High court as the exempted income u/s 11(1)(a) has no such condition as of those in explanation to sec 11(2) and the same can be donated to other trusts.

13.    

Lissie Medical Institutions(N)

(Related to charitable trust and depreciation)

Where the charitable trust has acquired a capital asset and the same has been treated as an application of income for charitable purpose u/s 11(1)(a), No any further depreciation can be allowable on same in any previous year.

Income from Salary

14.    

Shankar Krishnan(F)

(Related to Rent free accommodation)

The assess employee was given a rent free accommodation by employer. The employer has paid interest free deposits of Rs. 30 lacs and rent of Rs. 10,000 p.m. to landlord. The assessing officer calculated the perquisite value of RFA by adding 12% notional interest on security deposit. The same has been quashed by high court since the perquisite value is calculated by rule 3 which does have no any provision like this. Perquisite value of RFA is actual rent paid or payable or 15 % of salary whichever is lower. So the RFA perquisite value is Rs. 10,000 since the 15% of salary is more than Rs. 10,000.  

15.    

Director , Delhi Public School(A)

(Related to perquisite value education if school is maintained by employer)

As per the Income tax rule, 1962 the perquisite value of education in case the school is maintained by the employer will be cost of education in similar institution; the same is exempted if such cost is upto Rs. 1,000. The assesse claimed the deduction of Rs. 1,000 on perquisite value calculated (as the same is more than Rs. 1,000). The high court pronounced that the total value on perquisite in case of education is provided in institute of employer if the cost of education in similar institute is more than Rs. 1,000 shall be the perquisite value of such education. No deduction of Rs. 1,000 will be allowed.

Income from house Property

16.    

New Delhi Hotels Ltd.(N)

(Relating to determination of head of the income)

The income of rent from the unsold flats held as stock in trade should be assessed under “Income from House property” and not under “Profit and gain from business and profession”.

17.    

Joseph George and Co.(N) 

(Relating to the determination of head of income)

Where the assesse in business of lodging, the letting out of building to Bank on long term lease can’t be called as business and the income of rent in such respect is assessed under head “Income from house property” not in “Profit and gain from business and profession”. 

18.    

HariprashadBhojnagarwala(F)

(Related to deduction)

The deduction u/s 23(2) is allowed to the individual on self-occupation of house property. However the benefit cannot be denied to HUF on ground of it being an artificial person.

19.    

Azimgunj Estate(F)

(Related to specification of head of income)

The rent from unsold flat is income to be assessed under house property and eligible for the deduction of 30% u/s 24. It is immaterial that the same has been claimed as unsold flats in wealth tax return.

20.    

Asian Hotels Ltd.(F)

(Related to Accessibility of income)

The assesse has accepted interest free deposits from the tenant.  As per the judgment the notional interest on such deposits neither be assessed under sec 28(iv) since this is not an income other than case, rather it is notional income nor the same can be taxed in chapter of house proper as the valuation of annual letting value considers all possible maximum rent.

21.    

J. k. Investors(N)

(Related to charges received for other services)

If the services provided is incidental to the rent services given to tenants, then the income received for the services given is taxable under head “Income from house property”.

(If the service agreement would be independent, then it should be taxable under head “Other sources”.)

Profit and gain of Business or Profession

22.    

BSES Yamuna Power Ltd.(F)

(Relating to determination of rate of depreciation)

The rate of depreciation of computer accessories and peripherals is 60%. The general rate of depreciation i.e. 15% can’t be applied as these assets can’t be used without the use of computers.

23.    

Orient Ceramics and industries Ltd.(F)

(Relating to determination of the nature of expense)

The expenditure incurred on glow sign board is revenue in nature since it does not create any capital asset. Further the glow sign board is temporary in nature and decay with the effect of weather.

24.    

Mascon Technical Services Ltd.(A)

(Relating to expenses incurred for the increase on share capital)

The expenditure incurred on issue of share capital which is not ultimately materialized due to non-compliance SEBI requirements can’t be treated as revenue expenditure since the very nature of expense at the time of incurment was capital in nature.      

25.    

Confederation of Indian pharmaceutical industry(A)

(Relating to the disallowance of expenditure incurred for freebees to medical practitioner )

The circular 5/2012 is in line with the explanation u/s 37(1). Any expenditure incurred in respect of freebees to medical practitioner is not allowed as per the circular.   

26.    

Kap Scan Diagnostic Centre Pvt. Ltd.(A)

(Relating to the commission paid to doctor for referring patient)

Commission paid to doctor for referring patient is covered under circular 5/2012 and hence disallowed as per explanation u/s 37(1).

27.    

Kichha Sugar Co. Ltd.(F)

(Relating to allowance for the payment of employee’s contribution after due date as per PF Act but before due date u/s 139(1))

The employee’s contribution of provident fund deducted from the salaries of the employees is allowed if it has been paid after the due date as per the PF Act but before the due date u/s 139(1). The verse of section 36(1)(va) should be read with the section 43B).

28.    

I.C.D.S Ltd.(F)

(Related to allowance of depreciation)

The depreciation on vehicles leased out in leasing business can be claimed by the assess lessor even the lessor assesse is not the owner. The assesse has capacity to retain back the vehicle, thus in true sense the assesse can be regarded as an owner of leased assets. Further depreciation can’t be denied on ground that the asset has not been used for the business since the section is not about actual use of assets itself but use of asset in business is required which is there in fact.

29.    

SAIL Ltd.(A)

(Related to determination of Actual cost)

On waiver of loan which was given and applied for the purpose of buying capital assets, the actual cost of capital asset should be reduced by such waiver as per sec 43(1).

30.    

M. M. Forgings Ltd.(A)

(Related to allowablity of additional depreciation u/s 32(1)(iia))

The additional depreciation u/s 32(1)(iia) is subject to proviso to sec 32(1). Thus where the asset has been used less than 180 days during the year, the additional depreciation on same shall be restricted to 50% only.

31.    

Avera T and D India Ltd.(F)

(Related to additional depreciation slump sale)

As per the high court judgment, Where the assesse has paid consideration more than value of tangible assets on account of commercial rights, skilled employees, contracts etc. disclosed as goodwill in books of accounts, the same excess consideration paid can be treated as intangible asset under the category “other business or commercial rights of similar nature” specified in section 32(1)(ii) and eligible for depreciation u/s 32(1)(ii).    

32.    

Smifs Security Ltd.(F)

(Related to depreciation and amalgamation)

Where the assesse amalgamating company has paid extra consideration over the net assets taken over being goodwill for enjoying existing clientele. As per supreme court the goodwill of such nature is an asset under explanation 3(b) to section 32(1) and eligible for depreciation under this section.     

33.    

RaveendranPillai(F)

(Related to goodwill on purchase of hospital)

Where the assesse has paid extra amount on purchase of hospital for its continued business prior to acquisition, the same can be regarded as goodwill and entitled for the depreciation.  

34.    

Yamaha Motor India Pvt. Ltd.(F)

(Related to depreciation on discarded assets used in earlier years)

Depreciation is allowable on entire block even if it includes certain discarded machinery used in earlier year (not put to use in current year). 

35.    

Smt. A. Sivakami and Anothers(F)

(Related to depreciation on assets where assesse is not a legal owner)

Where the assesse is not the owner of the assets and disclosed the revenue from the assets as income to tax authorities, further all formalities in respect of assets like road tax and insurance has been done by assesse and documentation in respect has been established, the assesse can be regarded as beneficial owner and can claim deprecation u/s 32(1).  

36.    

Federal bank Ltd.(A)

(Related to Determination of depreciation rate)

The rate depreciation of 60 % is only for computers and EPABX and mobile phones are not computers, therefore not entitled to higher depreciation of 60%.   

37.    

Modi industries Ltd.(N)

(Related to determination of expenditure being capital of revenue)

Where the assesse hasdemolishedan asset and the same is reconstructed and re-erected, the same can’t be regarded as current repair. The expenditure is capital expenditure and required to be capitalized.

38.    

DCM Ltd.(F)

(Related to the deduction of retrenchment compensation paid and interest on capital borrowed for such payment)

The assesse has closed one of its textile manufacturing units out of total four units. The retrenchment compensation and interest paid on capital borrowed for such compensation is allowed u/s 37(1) and 36(1)(iii) respectively since the entire business has not been closed down.

(If the assesse has paid such sum on closure of entire business, the expense shall be of capital nature and allowable for deduction)

39.    

Echjay Forgings Ltd.(A)

(Related to commission paid to doctors by diagnostic center)

The commission paid by diagnostic centers to doctor is unlawful as per “Indian medical council (professional conduct, etiquettes and ethics) regulation, 2002” and can’t be allowed as deduction as per explanation to section 37(1).   

40.    

Bharat gears Ltd.(A)

(Related To repair expense)

The assesse had machinery which was discarded long back. The same was repaired by expending heavy amount. The high court gave the decision that the machinery which was repaired was outlived. It is of such nature that it brought into existence of new machinery, the same should be capitalized and depreciation can be claimed.

(exceptional case as the machinery was outlived and fully discarded long back)

41.    

ITC Hotels Ltd.(F)

(Related to expense incurred on issue of convertible debenture)

As per Karnataka high court, expenses incurred on issue and collection of convertible debenture is allowed as revenue expenses.

However As per the Ahmadabad high court, the proportionate of this nature of expenses is relates to equity and has to be treated as capital expenditure.

42.    

Shanti Bhushan(A)

(Related to expenditure incurred on lawyer’s heart)

The assesse is lawyer by profession. The assesse incurred expenses on the repair of heart and claimed deduction either u/s 37(1) or u/s 31 arguing that the same has been used for his profession. The high court pronounced that the expense can’t be claimed u/s 31 as heart can’t be included in the definition of plant as it is difficult to derive the cost of acquisition of heart. Further, the same can’t be claimed as deduction u/s 37(1) as the said expenditure as required by the section should be wholly and exclusively for the purpose of business. Since the repair of heart increases efficiency in every field including professional work, the expenditure can’t be said to have been incurred wholly and exclusively for the purpose of profession.

43.    

Priya Village Roadshows Ltd.(F)

(Related to determination of nature of expenditure)

Where the expenditure has been incurred for the feasibility study of a project which has not been succeeded, the same should be regarded as revenue nature.

(However, if the project has been succeeded then such cost would be of capital nature and deduction shall be made u/s 35D.)

44.    

Dr. Aswath N. Rao(F)

(Related to treatment of old machinery purchased to be used as dismantled spare parts)

The assesse imported old machinery, the payment of which was made on 31stMarch, the same reached in India in August month of next P. Y. The Assesse claimed the same as revenue expenditure since the intension of assesse was to use the asset after dismantle and as spare parts. The same has been supported by the high court after the department objected on the deduction of asset as revenue nature. Further the deduction is claimed in the year of purchase as the ownership was transferred to the assesse in the year of purchase.

45.    

Sagar talkies(F)

( Related to determination of nature of expenditure)

The assesse has incurred expenses in installing the dolby stereo system in the cinema hall maintained by him. The same has been adjudged as no capital expenditure by the court as this has not result in any increase in revenue or seating capacity of the Cinema hall.

46.    

Neelavanti& others(A)

(Related to payment made to local police and gundas)

 The amount paid to local police and gundas for not creating any disturbance to the cinema hall is not allowed as deduction as the same is unlawful nature and covered under explanation to section 37(1). 

47.    

Hindustan Zinc Ltd.(F)

(Related to repair expenses of dam not owned by assesse)

 The expense incurred for the repair of dam owned by state government for supply of water to plant which can’t be run without such water supply can be allowed as deduction and in no means be treated as expenditure of capital in nature.  

48.    

Millennia developers (A)

(Related to disallowance of penalty)

The amount paid as compounding fee for the violation of building bye laws approved by municipal authorities is in substance the nature of penalty. Thus, the same is not allowed u/s 37(1). 

49.    

Great city manufacturing Co.(F)

(Related to remuneration paid to partnership firm and section 40(A)(2)(a))

Remuneration paid to partners can’t be disallowed u/s 40(A)(2) on the ground that the sum paid is more than the salary of a normal employee if the three conditions provided u/s 40(b)(v) is satisfied.

50.    

Iskraemeco Regent ltd.(F)

(Related to remission of loan taken)

The remission of loan taken for the purpose of purchase of capital asset is neither covered u/s 41(1) as remission of trading liability nor it can be taxed u/s 28(iv) as such can’t be treated as benefit arising out of business.

51.    

Rollatainers Ltd.(F & A)

(Related to taxability of waiver of term and working capital loan)

The remission of term loan is not a remission of trading liability, thus not taxable u/s 41(1). However the remission of working capital loan is a remission of trading liability and treated as income u/s 41(1). 

52.    

Andhra Ferro Alloys P. Ltd.(F)

(Related to 43B and electricity charges)

Electricity charge does not come under the ambit of 43B as it can’t be termed Fee.

53.    

S. Ambika(F)

(Related to Abhikari license)

The Abhikari license is transferable license and is squarely falls under sec 32(1)(ii) on which assesse is entitled to claim depreciation at rate of 25 % on WDV u/s 32(1)(ii)

54.    

Tulip Star Hotels Ltd.(F)

(Related to allowbility of interest paid for investment in subsidiary company)

Where the assesse company has invested in equity shares of a company by borrowing the fund for making it a subsidiary and the subsidiary company was involved in managing new hotels acquired by the holding assesse company, the interest paid on fund borrowed is allowed u/s 36(1)(iii) on the plea that that fund has been expensed for the purpose of business.  

55.    

T. R. F. Ltd.(F)

(Related to bad Debt)

For deduction of bad debt u/s 36(1)(vii), it is not necessary to establish that the debt is irrecoverable. It is enough if the bad debt has been written off in the books of accounts.

(Creating Provision is not writing off of bad debt)

56.    

GrozBeckert Asia Ltd.(N)

(Related to nature of expense of corporate membership fee of gulf club)

Subscription of membership of gulf club for the limited period does create any capital asset and eligible to be claimed as business expense u/s 37(1).

57.    

KJS India Pvt. Ltd.(F)

(Related to severance cost paid on laying off of employees)

Where the assesse has two business segments and the one of them has been closed, the severance cost paid to the laid off employee is not a capital expenditure and can be claimed as revenue expenditure. 

58.    

Naidunia News and networking (P) Ltd.(F)

(Related to expense incurred for the knowledge in direct relation of business by director son)

The expense incurred by the assesse on the foreign travel and education of a regular employee outside India for gaining advance knowledge in relation to business is allowed u/s 37(1) and can’t be disallowed merely on fact that the employee is son of managing director.

59.    

Rajendra Kumar dabriwala(F)

(Relating to allowance of interest expense)

 The interest paid by the assesse on loan taken for the money lending business is allowed as deduction u/s 36(1)(iii) since the same has been taken for the purpose of business.

60.    

Cable corporation of India Ltd.(F)

(Relating to deprecation calculation)

Where a building is sold by the assesse, at the time of calculation of closing WDV, the deduction of “Money’s payable” shall be actual price received from the buyer. The fair market value of the building is immaterial.

(however if it is the case of scrap sale, the same should be deducted by Fair market value to determine the closing WDV)

61.    

DSD Noell GmbH(F)

(Related to section 44BBB)

If the assesse fulfills the conditions of sections of PTS, then the actual income if it is more than income as per PTS can’t be treated as taxable income.

62.    

Templeton asset management (India) p. Ltd.(F)

(Related to adjustment of income as per SEBI regulations)

The income can’t be increased on the verse that the assesse may have charged more fees for the services provided as the SEBI regulation provides for higher maximum limit of fees. Further the expenses charged in assesse account can’t be denied on the ground that the expenses could be recovered from the assesse client as the same is with the maximum amount of expenses which can be charged as per SEBI regulation.

Capital Gain

63.    

Smt. Rama Rani Kalia(F)

(Related to determination of nature of Capital gain where leasehold land has been converted to freehold land)

Where the assesse has converted his/her leasehold land into freehold land, the period of holding for the nature of CG on transfer of such freehold land shall be considered from the date of holding of leasehold land to the date of transfer. The event of conversion of leasehold land to freehold land is immaterial as the same is merely an improvement over the title of ownership.

64.    

Gita Duggal(F)

(Relating to exemption u/s 54 and 54F)

Where the assesse has made arrangement of renovation of building with any other person. The other person has been vested ownership over 22.5% land and third floor. The assesse earned the consideration of Rs 4 Cr and renovated building other than third floor. The assessing officer considered the cost of reconstruction as sales consideration but rejected the claim of exemption u/s 54/54F for construction of addition floor. The High Court gave the view that the same is eligible for exemption u/s 54/54F.

65.    

GauliMahadevappa(F)

(Relating to section 50C and 54/54F)

Where the stamp value is adopted as sales consideration for the purpose of section 48, the reinvestment made in residential property in excess of actual net sales consideration should be eligible for exemption u/s 54F.

If the assesse has not challenged the stamp duty value as sale consideration as per section 50C(2), then it is not open to assesse to raise matter in appeal.

66.    

Yatish Trading Co. Pvt. Ltd.(F)

(Relating to treatment of transfer of  shares converted from stock-in-trade to investment)

Where the assesse has converted the shares forming part of stock in trade into investments, on transfer of such shares being investment the difference between purchase price and FMV as on date of conversion should be offered as business income & the difference between sale price and FMV as on conversion date should be offered as capital gain in the previous year in which transfer has been effected.

67.    

Bharuka Engineering Inds Ltd.(F)

(Related to tax planning)

A sick company sold its land to one of its group company BFSL to discharge the liability of secured creditor. The holding company and the promoters of BFSL hold the shares of BFSL for more than 36 months. The shares of BFSL trades at Rs 5 per share. The holding company and the promoters sold the shares to one of other company DLFCDL at price of Rs 4,490 per share  and paid STT on such transection and claimed the exemption u/s 10(38). The department contended that the transaction has been has been used as a colorable devise to convert STCG into LTCG exempt u/s 10(38). The High Court held that the assesse can plan the tax by using the statute and the same can’t be called colorable transection. Whether the transaction is colorable or not depends upon case to case .In this case the involved companies are old and has complied all the formalities and compliance. Thus the transaction is genuine and not colorable in nature.          

68.    

PVS Raju(N)

(Related to determination of heads of income)

The head in which the income from the sale of share should be taxed can’t be determined by the application of any absolute rule.  The stress should be given over the facts like magnitude, frequency of buying and selling etc. from case to case. The mere classification of share in the books of accounts as inventory or investment is immaterial.  

69.    

P. P Menon(A)

(Related to the determination of nature of capital gain)

Period of holding of an asset received by a partner from the firm on dissolution should be reckoned from the date of dissolution of the firm. The period of holding of asset by the firm is irrelevant. Section 2(42A) does apply here.

70.    

Navin Jindal(N)

(Related to the determination of nature of capital gain)

The period of holding of the renounced right shares shall be reckoned from the date of announcement of such right by the company till the date of such renouncement for determining the nature of capital gain. 

71.    

Manjula J. shah(F)

(Related to Indexation u/s 48)

While determining the indexed cost of acquisition u/s 48, the assesse must be treated to have held the asset from the year the asset was first held by the previous owner and accordingly the CII for the year the asset was first held by the previous owner would be considered for determining the indexed  of acquisition. This is on the basis of deemed holding period fiction by the statute.   

72.    

Syed Ali Adil (F)

(Related to exemption u/s 54)

The adjacent flats having common kitchen and toilets can be regarded as “a residential house” for the purpose of exemption u/s 54 even though the same is separated by a strong wall and purchased from two different vendors.

73.    

Gurnam Singh(F)

(Related to exemption u/s 54B)

The exemption u/s 54B can’t be denied on the sole ground that the agriculture land purchased is registered in co-ownership with the assesse son.

74.    

Kamal wahal(F)

(Related to exemption u/s 54F)

The exemption u/s 54F can’t be denied if assesse purchases the residential flats in the name of his wife out of proceed of sale of capital asset.

(However, the same can’t be allowed if the same has been purchased in the name of any strangers)

75.    

RavindrakumarArora(F)

As same as above

76.    

SambandamUdaykumar(F)

(Related to exemption u/s 54F)

The exemption u/s 54F can’t be denied for investment in the construction of house on account of pendency of certain finishing work like flooring, electrical fittings etc. within stipulated time.

77.    

Rajiv Sukla(F)

(Related to exemption u/s 54F)

The deeming fiction created by section 50 in respect of capital gain on transfer of depreciable asset shall be treated as short term capital gain for the purpose of section 48 and 49 only not for the other sections. Thus section 54F is independent of same and assesse can claim exemption u/s 54F in respect of transfer of such asset claiming it as transfer of long term capital asset if the same has been held for more than 36 months. 

78.    

Hindustan Unilever Ltd.(F)

(Related to exemption u/s 54EC)

The exemption u/s 54EC is allowed if the payment has been made within six months even the bonds has been issued after six months since the section requires the investment in bond which is fulfilled by the assesse. 

79.    

Bharti Gupta Ramola(N)

(Related to determination of nature of capital gain)

For calculating the period of holding u/s 2(42A), the date of transfer of capital asset is considered.

80.    

Enam Securities Pvt. Ltd.(F)

(Related to indexation under third proviso u/s 48)

The application of third proviso to section 48 can’t be applied on transfer of preference share yielding fixed rate of dividend. It is immaterial that the preference share with fixed rate of dividend has similar features of bonds on which proviso to section 48 is applicable.    

81.    

Cello Plast(F)

(Related to exemption u/s 54 EC)

The assesse purchased the REC bond after the elapse of period of six month for claiming exemption u/s 54EC. The reason placed by the assesse that the same bond was available for very limited period for purchase within the allowed six month tenure. The high court supported the exemption on the ground that the reasonable extension can be granted to the assesse if the bonds are not available for the purchase.

82.    

K. G. Rukminiamna(F)

(Related to exemption u/s 54)

The assesse entered into the joint agreement with the builder where the builder has constructed eight residential flats and handed over four of them to the assesse. The assesse claimed the four residential flats as “a residential house and claimed exemption u/s 54. The same is supported by the high court.

Income from other sources

83.    

Parle Plastics Ltd.(F)

(Related to loan and dividend)

The substantial part of business is concluded by the percentage of turnover in relation to the whole, percentage of profit in relation to the whole and also the percentage of manpower in relation to the whole. Since 42% of the asset of the company is deployed by it by way of loan and advance, further the profit earned by them if excluded turns the result into of the company, the loan activity is termed as substantial part of the assesse and consequently the loan is not resulted into dividend as per section 2(22). 

84.    

Pradip Kumar malhotra(F)

(Related to deemed dividend u/s 2(22)

The loan and advance extended by closely held company to shareholder having significant influence if gratuitous in nature and for the protection of interest of the company, can’t be treated as deemed dividend u/s 2(22)(e).

85.    

Ambassador travels Pvt. Ltd.(F)

(Related to dividend u/s 2(22)(e)

The assesse company is regularly dealing with two resorts for the booking of their customers. In such case if the loan and advances has been extended to such resort, the same will not treated as deemed dividend u/s 2(22)(e.)   

86.    

Manjoo and Co.(A)

(Related to the lottery income)

The lottery tickets remain unsold by the distributers cease to be stock in trade once the draw has been done. It is regarded as mere piece of paper. Further the prize if won on such unsold ticket does not evidence the intellectual and physical efforts of the distributer. Thus the same is not considered as business income and is treated u/s 115BB and consequently tax rate of 30% would be levied on same.

Set off and carry forward of losses

87.    

Pramod Mittal(A)

(Related to carry forward of losses in case of partnership firm business in taken over by its partner)

The losses of partnership firm can’t be carry-forwarded to sole proprietor being one of its partners who continued the business of that firm. Reason being as per section 78(2) for carry forward of losses, the assesse should be same except in case of succession by inheritance which does not include conversion of partnership firm into proprietorship.

Deduction from Gross Total Income

88.    

OrchevPherma P. Ltd.(A)

(Related to deduction under head “C” of chapter VIA)

The income from export incentive cannot be said to be income “derived from” the industrial undertaking and therefore does not qualify for exemption u/s 80IB.

(Similar Case being - Jaswand Sons and Liberty India)

89.    

Puttur Petro Pvt. Ltd.(F)

(Relating to determination of allowably of deduction u/s 80IB in case of bottling of gas)

The bottling gas from gas cylinder into gas bottle requires specific process and P & M. Thus eligible to deduction u/s 80IB.

90.    

Swarnagiri Wire insulator Pvt. Ltd.(F)

(Related to unabsorbed depreciation and section 80IA)

Loss due to unabsorbed depreciation from eligible business u/s 80(IA) can be set off against the profit from the non-eligible of the same assessment year. However such unabsorbed deprecation shall be deducted from the profit from eligible business for determining deduction u/s 80(IA).

91.    

Kiran Enterprises(A)

(Relating to freight subsidy for the deduction u/s 80IA)

The freight subsidy received in respect of eligible business u/s 80IA is not eligible for deduction u/s 80IA since the same is not incidental to the operation of the business.

NOTE- Thus the capital nature profit is not eligible for deduction u/s 80(IA)

92.    

Meghalaya Steel Ltd.(A)

(Relating to transport subsidy for the deduction u/s 80IB)

The transport and interest subsidy received in respect of eligible business u/s 80IB is not eligible for deduction u/s 80IB since the same is not incidental to the operation of the business. However, the subsidy by refund of excise duty is eligible for deduction as the excise duty has directly nexus with the manufacturing activity.

93.    

Jyoti Plastics works Pvt. Ltd.(F)

(Relating to deduction u/s 80IB)

Where the eligible manufacturing undertaking is manufacturing with aid of power, the deduction u/s 80IBcan’t be denied if the number of employees directly appointed is less than 10 but is more than 20 after taking account of employed through contractor.

94.    

Praveen Soni(F)

(Relating to Deduction u/s 80 IB)

The deduction u/s 80IB can be claimed in remaining years of qualification even if no deduction under this section has been claimed in first year of qualification.

95.    

Chiranjjeevi  Wind energy Ltd.(F)

(Relating to deduction u/s 80IB for windmill)

The procurement of parts and assembling them to create a product called windmill is manufacturing process and eligible for deduction u/s 80IB.

96.    

Nestor Pharmaceuticals Ltd.(A)

(Relating to point  of commencement of deduction u/s 80IB)

The assesse has affected trial run and sold the produced unit in order to get the registration under excise and others in March, 1998. However the commercial production started in April, 1999. The High Court pronounced that the production for the marketing is deemed to be started on the commercial production. Since in this case the product has been sold in the market, it is deemed that the criteria for the commencement of the production are fulfilled. Thus the assesse is eligible to claim deduction from the A.Y. 1999-2000 i.e. from the year of year of trail run.

(Note- Had the sale has not been affected in the year of trail run, the deduction shall be from the year of commercial production.    

97.    

Radhe Developers(F)

(Relating to housing project)

The deduction u/s 80IB for developing and building housing project shall not be denied if the ownership of the land has not been transferred and the approval for such project has been obtained in the name of original land owner.  Since u/s 80IB there is no such requirement that the ownership is required.  

98.    

Vandana Properties(F)

(Relating to deduction for development of house property in respect of extension)

The deduction u/s 80 IB for the development of housing project in a plot of land in which the already four housing projects has been completed three years ago is available. Further it is immaterial that the size of land in which  housing project has been carried is less than 1 acre as the requirement is for the plot of land which comprise of total 5 housing project which is more than 1 acre.

99.    

Pine packaging P Ltd.(A)

(Relating to deduction of standing charge u/s 80IB)

The standing charges received by the assesse are not eligible for deduction u/s 80IB as the same is due to underutilization of plant, not due to operation of business.

Assessment of various entities

100.                         

D L Nandagopala Reddy( N)

(Relating to the determination of person in whose hand income to be taxed)

Where the assesse has got a property from inheritance on death of his parents. The property was at first belong to HUF and then transferred to assesse’s father via release deed. The assesse underwent into the partition of the property between himself, his wife and his son. The income from that property shall in not be individually assessed but shall be assessed in the hand of the HUF. 

101.                         

SudhirNagpal(N)

(Relating to head of income)

Income from letting out the plinths is assessable under the head “other sources” instead of house property.

102.                         

Secunderabad club pocket(A)

Madras Gymkhana Club(A)

(Relating to mutuality and interest earned from the corporate member being banks and Financial institutions)

The interest earned from fixed deposits with the corporate members being banks and financial institution in not by the virtue of their social club relationship but the same is being invested with the motive of earning interest. Further the banks also treats club as their normal customers. Thus, the same is not exempt on the ground of mutuality. 

103.                         

Sind Co-operative Housing society(F)

(Relating to transfer fee received & paid to the incoming and outgoing member)

Transfer fee received and paid is exempt on the ground of mutuality as there is no intention of trade or business.

104.                         

Indcom(N)

(Relating to TDS deduction on non-resident umpires and referees)

The TDS on income of non-resident umpires and referees are not covered u/s 194E as the same are neither sportsman nor the sport institution. Further the same can be regarded as technical person or professional but section 194J cannot be applied as the same is applicable only to residents. Since the income is assessable in India, TDS is required to be deducted u/s 195.    

105.                         

Anil Hardware Store(F)

(Relating to deduction of remuneration paid to partners)

If the partnership deed provides the manner of computation of remuneration, the assesse firm is eligible for deduction of remuneration subject to restriction u/s 40(b)(v).

106.                         

Rotla India Ltd.(A)

(Relating to MAT and interest u/s 234)

If the assesse is required to pay tax as per sec 115JB, the other provisions of income tax shall be applicable by the virtue of sec 115JB(5). Thus the assesse is required to pay interest u/s 234B and 234C.

107.                         

N. J. Jose and Co.(A)

(Relating to the exclusion of exempted LTCG in calculation of book profit u/s 11JB)

Exempted LTCG u/s 54EC shall not be deducted to calculate the book profit u/s 115JB as the same is not specified in explanation 1 to section 115JB.

Income tax Authorities

108.                         

Kathiroor Services Co-Operative Bank Ltd.(A)

(Relating to issue of notice for furnish of details)

Where no any proceeding exists in case of the assesse, the assessing officer can demand for any information which may be relevant for any enquiry with the prior permission of commissioner or director.

109.                         

Sahara hospitality Ltd.(F)

(Relating  to reasonable opportunity )

The word “may” shall be construed as “shall” in the provision requiring reasonable opportunity to be given. It can be dispensed only in case where it is not possible to provide such opportunity by recording the reasons for the same. The authority cannot deny such opportunity whenever it is possible to do so. 

110.                         

Lodhi Property company Ltd.(F)

(Relating to condone of delay of filing of return)

The assesse has filed the loss return a day after due date and requested for the condone stating the fact that the return was actually filed on due date at closing hours in wrong room of the department and on the arrival to the right room the desk has been closed. Therefore the same is filed on the next day. The high court held that the board has power to condone such delay to eliminate hardship.

Refer sec 119(2)(b)  

Assessment procedure

111.                         

Govind Nagar Sugar Ltd.(F)

(Relating to carry forward of the unabsorbed depreciation)

Unabsorbed depreciation can be carry forwarded in case the loss return is not filed within the due date u/s 139(1) since the same is regulated by section 32(2). Provision in section 80 and 139(3) requires the return of income claiming loss to be filed within the due date, applies to, inter alia, carry forward of business loss only. 

112.                         

Orissa Rural Housing Development Corp. Ltd.(A) 

(Relating to filing of revised return)

The assesse cannot make a fresh claim before AO by filing revised statement of income as the same being valueless. The same can be revised only by filing revised return u/s 139(5).

113.                         

Smt. A. kowsalyaBai(F)

(Relating to conflict between section 197A and 206AA)

Section 197A provides that no PAN is required to be held by a person whose total income does not exceed the maximum amount not chargeable to income tax. Further section 206AA requires the furnishing of PAN in mandatory case to avoid the deduction at higher rate of deduction. Since the two provision conflict with each other in case of person having lower income base, the high court held that in case of person having income lower than the maximum amount not chargeable to tax, section 206AA is not applicable, thus the banking and financial institution shall not insist on these person to quote PAN u/s 197A.  

114.                         

Aventis Pharma Ltd.(F)

(Relating to reopen of assessment)

The reassessment can be triggered only on existence of tangible material before the AO to hold that income had escaped assessment within the meaning of section 147, thus mere change in opinion cannot be a reason for the reopen of the assessment.

115.                         

ICICI Securities primary Dealership Ltd.(F)

(Relating to reopen of assessment)

Mere change in opinion by the AO that the loss is speculative loss and not normal loss where the entire facts has been disclosed by the assesse on the information called upon by the department and there is no any failure in the part of the assesse, the change in opinion cannot be the reason to reopen the assessment.

116.                         

Ranbaxy Laboratories Ltd.(F)

(Relating to assessment on other matter which was not the reason to believe)

If the matter which forms the reasons to believe has been dropped and no addition on the income has been made due to such reasons. It is not open to AO to assess or reassess on the other matters arose subsequently independently as the word used in section 147 is “and also”.

117.                         

H. K. Buildcon Ltd.(F)

(Relating to interpretation of word “ISSUE” )

The date of issue shall not be date of signing of the notice but the date of submission of the same to the competent authority like post office.

118.                         

Haryana State Handloom and Handicrafts corporation Ltd. (N)

(Relating to rectification u/s 154 in case of notice issued u/s 143(2))

The rectification u/s 154 cannot be processed in case the notice u/s 143(2) has been issued as the rectification for which intimation u/s 154 was drown can be made while reassessment and the same if processed will lead to delicacy.

119.                         

Tony electronics Ltd.(F)

(Relating to determination of point from where the period of 4 years shall be reckoned for the purpose of section 154(2))

Where the assesse has opted for the appeal against the prior order. The prior order shall marge with the current order and period of 4 years shall be reckoned from the point of current order.

Appeal and Revision

120.                         

Samsung India Electronics Pvt. Ltd.(A)

(Relating to Writ petition for notice issued u/s 148)

Where the notice has been issued u/s 148, the assesse has to go for the filing of return and then can demand the reason thereof. The assesse can then raise objection on the notice which needs to be settled by the assessing officer by speaking order. Where the assesse has filed the writ petition directly to High Court for the notice u/s 148 which is supported by the judgment of a Case “Techspan India Pvt. Ltd.”, such rule since not universally followed and the case law being exception in nature, the assesse should file the return of income and demand for the reason of the notice.  

121.                         

Deepak Kumar garg(N)

(Relating to power of high court to review)

 The High Court has power to restore the appeal. However it can’t review the order passed on merit.

122.                         

Sanchit Software and solutions Pvt. Ltd.(F)

(Relating to rectification u/s 264)

Where the assesse has by mistake filed the return of income taxing the exempt income u/s 10(34) or 10(38). The revision u/s 264 and rectification u/s 154 of intimation u/s 143(1) can’t be denied on the ground that the intimation is as per the return filed by the assesse, the same being no error. The High Court is of the view that the objective of the department is to secure the revenue but the same can’t take the advantage of mistake committed by the assesse.  

123.                         

ICICI Bank Ltd.(F)

(Relating to the relevancy of the date of assessment for consideration of sunset date)

Where the assessment u/s 143(3) and reassessment u/s 147 has been made for any assessment year. The period of 2 years for the purpose of revision u/s 263 for the matter discussed in assessment u/s 143(3) shall be reckoned from the end of F.Y. in which order of assessment u/s 143(3) has been passes if the matter discussed in order of reassessment u/s 148 is different than those dealt in assessment u/s 143(3).  

124.                         

Pruthvi Brokers & shareholder(N)

(Relating to raise of addition ground and claims)

The High Court in the judgment held that the additional claims can’t be made to assessing officer other than by filing of revised return. However, additional grounds can be raised by the assesse before any appellate authority during any proceeding.      

125.                         

Earnest Exports Ltd.(N)

(Relating to rectification by tribunal u/s 254(2)

The ITAT can make rectification in its order u/s 254(2) for the error apparent from record. Section 254(2) does not give power to re-conclude the decision that it should have made earlier.

126.                         

Lachman Das Bhatia Hingwala(N)

(Relating to rectification u/s 254(2))

Section 254(2) gives power to the tribunal to rectify its mistake apparent from record. Same can’t be presumed to have the power to review the decision made. However the Delhi HC has held that the Tribunal can recall its order in entirety (i.e. to re-conclude the decision) if prejudice has been resulted from the tribunal’s mistake, error and omission and the error is apparent from record.       

127.                         

Subhash Kumar Jain(F)

(Relating to the determination of erroneous any order)

If he assesse has surrendered he income on the condition that no penalty could be levied and the same has been accepted by department, CIT can’t revise the order for inclusion of penalty relaxed stating that the order was erroneous due to relaxation of penalty.

Penalty

128.                         

MAK data Pvt. Ltd.(A)

(Relating to levy of penalty in case the assesse has surrendered income in response of show Couse notice)

The assesse disclosed the income in response of the show Couse Notice. It can’t relived from the penalty provision stating that the sum has been disclosed before A.O. has recorded the same and with to avoid the unproductive time, since if the assesse has fair motive it would have disclosed the income in return of income filed.   

129.                         

Triumph International Finance Ltd.(F)

(Relating to the penalty u/s 274E)

Where the assesse has repaid the loan by the book entry, the same shall be treated as violation of provision 269T. The augment of the assesse that the requirement to pay the loan with account payee cheque as per section 269T arise when the repayment is done by the outflow of fund or the transection being bona-fide can’t treat the transection being the violation of section 269T. Hence the penalty u/s 274E shall be levied for contravention of section 269T. However since assesse has given a bona-fide reason for the transaction, the penalty can be waived by section 274B.

130.                         

Celetromix Power India Pvt. Ltd. (F)

(Relating to penalty u/s 271(1)(c))

The assesse has taken deduction under chapter VI A on basis of the High Court decision. If at the time assessment the decision of High Court has been reversed by the Supreme court, then the penalty u/s 271(1)(c) can’t be levied as the same can be levied on the concealment of income or on furnish of inaccurate particulars  of the income.   

131.                         

IndersonsLether Pvt. Ltd.(F)

(Penalty on debatable issue)

Where the revenue is of view that particular income to be assessed in different head, the penalty u/s 271(1)(c) can’t be levied on such matter as there in no concealment of income or inaccurate furnish of particulars of income.

132.                         

Amit Jain(F)

Same as above

133.                         

Reliance Petro Products Pvt. Ltd.(F)

Same as above

134.                         

Amtek Auto Ltd.

(Relating to penalty and section 115 JB)

The assesse has made deduction of capital expenditure and paid the tax under the provision of MAT. On addition of such deductions by the A.O. the tax is still payable under the provision of MAT. The High Court held the view that the penalty u/s 271(1)(c) in such cases can’t be levied as there is no concealment of income. 

135.                         

Price Waterhouse Cooper Pvt. Ltd.(F)

(Relating to penalty)

The assesse has made deduction of provision made in respect of gratuity. The same has been disallowed by the Tax auditor in 3CD. The assesse on furnish of reason for notice u/s 148, paid the tax amount along with interest. On the issue raised by the A.O. for the levy of penalty u/s 271(1)(c), the Supreme Court held that the contention of assesse was not to evade the tax as there was no suppression of fact, the same being the matter of error committed, no penalty should be levied on the assesse for such error. 

Offence and Prosecution

136.                         

Bhavecha machinery and others(F)

(Relating to Filing of return)

In this case it was held that the prosecution can be raised on willful delay in the filing of return. There should be clear establishment that the delay was willful.

Miscellaneous Provision

137.                         

V. Sivakumar(F)

(Relating to violation of section 269SS where loan is taken by partner)

Where the assesse being partnership firm has given loan in cash to the partner and debited the amount in the name of sole proprietorship of such partner, it can’t be regarded as violation of section 269SS as partnership firm has no separate legal identity then its partner. Hence partners can use the fund of the partnership firm.   

Deduction, Collection and Recovery of Tax

138.                         

Hindustan Lever Ltd.(N)

(Relating to the non-deduction of TDS u/s 194B)

Where the price of lottery is totally in kind and the deductor assesse has not ensured that the tax has been paid before releasing the lottery price. The assesse can’t be called assesse in default u/s 201. However the penalty u/s 271C and imprisonment u/s 276B shall get attracted. 

139.                         

Ajmer VidyutVitran Nigam Ltd.(A)

(Relating to TDS u/s 194J on payment by electricity generation company to transmission and distribution company)

The transmission and distribution charges paid by the electricity generation company to transmission and distribution company is nature of technical fee as the same requires the technical equipments and technical staffs to monitor the process, and hence the same is subject to deduction TDS u/s 194J. However the SDLC charge is merely a supervisory charge on which no section of TDS is applicable.      

140.                         

Bharti Cellular(A)

Vodafone Essar Cellular Ltd.(A)

(Relating to TDS deduction on discount received on sale of SIM card)

Distributers acts as a middleman on behalf of assesse for procuring and retaining subscribers. Therefore, the discount received by the distributer is within the meaning of the commission u/s 194H. Hence, TDS is required to be deducted on such discount.  

141.                         

Mother Diary India Ltd.(F)

(Relating to TDS u/s 194H)

Where the assesse diary sales milk to the concessionaire by providing them the space (booth) to sale the milk to ultimate customer and keep the right to inspect the booth, milk and other products, it can’t be said that the concessionaries are acting as agent of the diary assesse. The transection of sale has been made principal to principal basis as the ownership of the milk passes to concessionaries at the time of sale. The right to inspect is to safeguard the relationship of concessionaries and the assesse diary. Hence TDS u/s 194H shall not attracted in the transaction.  

142.                         

Delta Air Lines Inc.(F)

(Relating to levy of interest u/s 234D)

Where the assesse has been granted refund as per the order of commissioner and which subsequently reversed by the Tribunal, the interest u/s 234D can’t be levied on such refund as the same can be levied only in case of processing of return u/s 143(1).

143.                         

Jeans Knit(F)

(Relating to adjustment of refund of any A.Y. with the tax due of another A. Y.)

The High Court in this issue held that the adjustment of tax refund of any A. Y. with the tax dues of another A. Y. without prior intimation to assesse is illegal and contrary to law. Therefore The High Court set aside the order so far it relates to such adjustment.

144.                         

ITC Ltd.(A)

(Relating to deduction of TDS u/s 192 on Tip distributed by the hotel company to their staffs)

Where the hotel has charged certain percentage of bill amount on the bill on account of the tips to be distributed to the employees. TDS is required to be deducted on such distribution of tips u/s 192. 

145.                         

Ahmedabad Stamp Vendors Association(F)

(Relating to the TDS u/s 194H on sale of stamp papers)

The distribution channel of stamp paper from govt. to retail people through stamp vendor is principal to principle transection since the stamp vendors gets the stamp paper on payment of amount which is stamp value less discount. Further ownership is also passed to them on such transection. The transaction would be exposed to deduction of TDS on discount if the vendors were acting as agents of government. Thus no TDS u/s 194H should be deducted on such discount. 

146.                         

Qatar Airways(F)

(Relating to deduction of TDS u/s 194H on special commission by airline agents)

The airline company sold air tickets to their agents at minimum fixed commercial price which was further sold by them to travellers at any price of their discretion maximum upto published price. The company also paid 9% commission on published price to the agents on which TDS u/s 194H was deducted. On issue whether the difference between minimum fixed commercial price and actual sales price would be regarded as commission and TDS u/s 194H shall be applicable or not. The High Court is of the view that the same can’t be treated as special commission in the hands of agent, since the actual sale price is not ascertainable to company for the deduction of TDS. 

147.                         

Senior Manager, SBI(F)

(Relating to determination of threshold limit u/s 194I)

Where the share of rent to be paid to the co- owners of the property is predetermined and has been paid by the separate cheque, the threshold limit mentioned in section 194I shall be seen for the co-owners separately.

148.                         

Japan Airlines(N)

(Relating to determination of section for TDS deduction on rent paid by airlines to airport authorities.)

The High Court held that when the wheels touch the land of the airport, the use of land starts. Further on the parking, there is use of land. Thus the landing and parking fee were definitely come under meaning of rent and subject to provision section 194I.     

149.                         

Shree Mahalakshmi Transport Co.(N)

(Relating to determination of section for TDS deduction)

Where the assesse has given contact for transport of building materials through dumpers. The payment for the same should be subject to TDS deduction u/s 194C instead of 194I.

150.                         

Director, PrasharBharti(A)

(Relating to the deduction TDS u/s 194H on commission on advertisement)

The amount retained as commission out of advertisement charges received by the advertisement agencies of the telecommunication channels is deductible to TDS u/s 194H.  

151.                         

Hardarshan Singh(F)

(Relating to the TDS deduction on payment to principal transporters by facilitator)

The assesse arranges lorries for their clients. The intermediary receives the payment along with his part of commission. The assesse forward the payment to the principal transporter by retaining the commission accrued to him. On the issue whether the TDS u/s 194C should be deducted on payment by the assesse to principal transporter, it was held that since of privity of contract  lies between assesse in principal transporter and assesse has acted as merely intermediary, the assesse is not the person responsible for deduction of tax on such payment. 

152.                         

East India hotels Ltd.(F)

(Relating to deduction u/s 194C for facilities provided by Hotels)

The various facilities and amenities provided by hotels are not covered under the meaning of work u/s 194C, thus no TDS should be deducted on same.