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S. 260A Low Tax Effect Circular: Very strange request by the Dept is an attempt to get over the binding Circulars. We shall not allow the Revenue to get over them in this manner. The Circulars continue to bind the Revenue and if they contain any conditions, whether such conditions are attracted or not would have to be proved and established by the Revenue
PCIT vs. Nawany Construction Co. Pvt Ltd
(2018) TaxCorp(LJ) 15803 (HC-BOMBAY) · Section 260A
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Gain arising to the assessee on account of securitization of lease receivables and credited to the Profit & Loss Account is a taxable receipt in the year of securitisation as per T. V. Sunderam Iyengar 222 ITR 344 (SC). Argument that the entry represents hypothetical income and not real income and that the amount is assessable in subsequent years on receivable basis is not correct. Question of whether income can also be deferred to subsequent years under the "Matching concept" as per Taparia Tools 260 ITR 102 (Bom)/ 372 ITR 605 (SC) left open
L&T Finance Limited vs. DCIT
(2018) TaxCorp(LJ) 15797 (HC-BOMBAY)
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S. 276(C)(1) Prosecution for bogus transaction: If a stay application is filed before the CIT(A) to seek a stay of the assessment order, during the pendency of such application, the criminal prosecution should not be launched and, if it has been already launched, the same shall not proceed
Ramchandran Ananthan Pothi vs. UOI
(2018) TaxCorp(LJ) 15775 (HC-BOMBAY) · Section 276(C)(1)
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A co-operative housing Society is not expected to indulge into profiteering business from its members. Transfer fees cannot be charged under the pretext of "voluntary donation". Amount which is accepted above permissible limits towards transfer fee is illegal and taxable as income in the hands of the society
Alankar Sahkari Griha Rachana Sanstha Maryadit vs. Atul Mahadev Bhagat
(2018) TaxCorp(LJ) 15712 (HC-BOMBAY)
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S. 271(1)(c) Penalty: If appeals with reference to the quantum proceedings have been admitted by the Court on substantial questions of law, it means that there were debatable and arguable questions raised and so penalty u/s 271(1)(c) cannot be levied (PCIT v. Shree Gopal Housing 167 DTR 236 distinguished). Penalty also cannot be levied if the claim was as per judicial precedents prevalent at the time of filing the ROI. Also, there must be a finding that the details supplied by the assessee in its return were incorrect or erroneous or false
PCIT vs. Dhariwal Industries Ltd
(2018) TaxCorp(LJ) 15711 (HC-BOMBAY) · Section 271(1)(c)
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HC - Where appeals with reference to the quantum proceedings have been admitted by the co- ordinate bench, Sec. 271(1)(c) penalty not valid (since the issue is ‘debatable’).
The Pr. Commissioner of Income Tax (Central) Vs Dhariwal Industries Ltd.
(2018) TaxCorp(LJ) 15706 (HC-BOMBAY) · Section 271(1)(c)
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HC - Tribunal should not have remanded the matter back as the entire material was before the authorities to examine PE constitution.
Co-operative Centrale Reiffeisen- Boerenleenbank B. A Vs Deputy Director of Income Tax
(2018) TaxCorp(LJ) 15702 (HC-BOMBAY)
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HC - CBDT had taken a view that transaction of derivative contract being settled by physical delivery of shares is not any different from transaction in equity shares settled by actual delivery of shares and that the rates of STT as applicable to delivery based equity transactions shall also be applicable to such derivative transaction.
Association of National Exchanges Members of India Vs Securities and Exchange Board of India and Others
(2018) TaxCorp(LJ) 15701 (HC-BOMBAY)
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The Revenue has been selective in its approach. It picks either the assessee or the AYs pertaining to that assessee for challenging the orders in relation to them, before the higher forums. This results in revenue leakage or perpetuation of wrongs affecting adversely the collection of revenue. The public at large is at a loss to understand as to why the Department/Revenue consistently loses the battle in the higher Courts. This could be then termed as a deliberate or intentional act. If the Department of Revenue, Ministry of Finance, Government of India is going to conveniently overlook this and not bring the guilty persons to book by initiating disciplinary measures against them, then, no purpose will be served at all. This is not a short term exercise, but a major surgery which will have to be performed. If the Revenue Officials are prepared to take some bold decisions, then, only these state of affairs will improve and not otherwise
PCIT vs. International Biotech Park Ltd (Bombay High Court)
(2018) TaxCorp(LJ) 15672 (HC-BOMBAY)
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Securities Transaction Tax: CBDT's clarification that where a derivative contract is being settled by physical delivery of shares, the transaction would not be any different from transaction in equity share where the contract is settled by actual delivery or transfer of shares and the rates of STT as applicable to such delivery based equity transactions shall also be applicable to such derivative transaction takes care of the grievance of the stake holders
Association of National Exchanges Members of India vs. SEBI
(2018) TaxCorp(LJ) 15669 (HC-BOMBAY)
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These Petitions have been filed challenging a somewhat curious and unforeseen development. We do not know in what circumstances the Chairman flew down to Mumbai and invited the members for discussion in relation to some cases or related issues. It would be highly risky if such discussions in relation to judicial orders and judicial matters are held in a close-door meeting or in the privacy of the chambers of the members of the Settlement Commission. There is a uncalled for interference in judicial proceedings and none including the Chairman can direct a particular course of action to be taken or a particular order being passed in pending judicial proceedings
Raghuleela Builders Pvt Ltd. vs. Income Tax Settlement Commission (ITSC)
(2018) TaxCorp(LJ) 15667 (HC-BOMBAY)
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These Petitions have been filed challenging a somewhat curious and unforeseen development. We do not know in what circumstances the Chairman flew down to Mumbai and invited the members for discussion in relation to some cases or related issues. It would be highly risky if such discussions in relation to judicial orders and judicial matters are held in a close-door meeting or in the privacy of the chambers of the members of the Settlement Commission. There is a uncalled for interference in judicial proceedings and none including the Chairman can direct a particular course of action to be taken or a particular order being passed in pending judicial proceedings
Raghuleela Builders Pvt Ltd vs. Income Tax Settlement Commission (ITSC)
(2018) TaxCorp(LJ) 15650 (HC-BOMBAY)
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Gains from sale of shares whether capital gains or business profits: Short period of holding shows that intention of assessee is to earn profit at earliest possible occasion. Assessee is moving as per stock market trend and selling shares at first available opportunity. This type of activity of sale and purchase is rightly termed, not as investment, but as trading
Ramilaben D. Jain vs. ACIT
(2018) TaxCorp(LJ) 15639 (HC-BOMBAY)
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S. 147/50C: The assessment cannot be reopened (within 4 years) on the ground that the AO lost sight of a statutory provision like 50C. This amounts to a review. A.L.A. Firm 55 TM 497 (SC) distinguished on the basis that the reopening in that case was because the AO was unaware of a binding High Court judgement. Here it is not the case of the Revenue that the AO was not aware of s. 50C at the time of passing the S. 143(3) assessment order
PCIT. vs. Inarco Limited
(2018) TaxCorp(LJ) 15604 (HC-BOMBAY) · Sections. 147, 50C
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S. 14A Rule 8D: The expression “does not form part of the total income” in s. 14A envisages that there should be an actual receipt of the income, which is not includible in the total income. If no exempt income is received or receivable during the relevant previous year, no disallowance u/s 14A can be made
PCIT vs. Ballarpur Industries Limited
(2018) TaxCorp(LJ) 15557 (HC-BOMBAY) · Section 14A
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S. 32(2): There is no conflict between CIT vs. Hindustan Unilever Ltd 394 ITR 73 (Bom) & Miltons/ Confidence Petroleum because while the former is at the stage of final hearing, the latter is at the stage of admission. Accordingly, the request for reference to a Larger Bench is not acceptable. Merely filing of an SLP would not make the order of this Court bad in law or give a license to the Revenue to proceed on the basis that the order is stayed and/or in abeyance
PCIT vs. Associated Cables Pvt. Ltd (Bombay High Court)
(2018) TaxCorp(LJ) 15543 (HC-BOMBAY) · Section 32(2)
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Objection taken to SMS from Dept Advocate that what Court is “pressurising me to do is both wrong and unethical. No Advocate of any worth would stoop so low. Sorry I am not able to comply with this rather unusual demand”. The SMS is contrary to the statement made by the learned Additional Solicitor General. The SMS either stems from not understanding our view or it is a made up indignation so as to accuse of us of pressurizing him to do an activity not expected of an Advocate. It appears to be in the second category as the SMS appears to give a completely different twist to the facts as stated to him by Associate. Copy of order sent to CBDT Chairman
PCIT. vs. Starflex Sealing India Pvt. Ltd.
(2018) TaxCorp(LJ) 15491 (HC-BOMBAY)
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S. 254(2): If there is no discussion whatsoever by the Tribunal of the various case laws detailed in the submissions filed by the assessee, the order is non-speaking and has to be recalled. The Tribunal should take into account the material and case laws relied upon by the assessee during the hearing
Amore Jewels Private Ltd. vs. DCIT
(2018) TaxCorp(LJ) 15490 (HC-BOMBAY) · Section. 254(2)
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S. 260A Transfer Pricing: Appeals against exclusion or inclusion of comparables to determine ALP of tested parties should not be filed in a ritualistic manner. Any inclusion or exclusion of comparables per se cannot be treated as a question of law unless it is demonstrated to the Court that the Tribunal or any other lower authority took into account irrelevant consideration or excluded relevant factors in the ALP determination that impact significantly
PCIT. vs. Barclays Technology Centre India Private Ltd.
(2018) TaxCorp(LJ) 15488 (HC-BOMBAY) · Section. 260A
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S. 68 Bogus share capital: If copies of the share application form, share allotment Register and Bank Statements showing receipt of funds are on record and if all the shareholders have filed Affidavits declaring the fact that they are investing in the assessee-Company by issuing of cheques from their Accounts, the assessee has fulfilled the requirement of proving genuineness of the transaction, identity and creditworthiness of the shareholders/investors and addition cannot be made u/s 68
PCIT. vs. Acquatic Remedies Pvt. Ltd.
(2018) TaxCorp(LJ) 15484 (HC-BOMBAY) · Section. 68
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