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Bogus Capital Gains From Penny Stocks: In order to treat the capital gains from penny stocks as bogus, the Dept has to show that there is a scam and that the assessee is part of the scam. The chain of events and the live link of the assesee's action giving her involvement in the scam should be established. The Dept cannot rely on alleged modus operandi & human behavior and disregard the evidence produced by the assessee. All imp judgements referred
Navneet Agarwal vs. ITO
(2018) TaxCorp(LJ) 15435 (ITAT-KOLKATA)
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S. 50C is a deeming provision and applies only to the transfer of land or building. It does not apply to the transfer of "booking rights" and to right to purchase flats in a building
Baniara Engineers Pvt. Ltd. vs. ITO
(2018) TaxCorp(LJ) 15336 (ITAT-KOLKATA) · Section. 50C
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S. 68 Bogus Capital Gains from Penny Stocks: 31000% increase in value of shares over 2 years is highly suspicious but cannot take the place of evidence. The addition cannot be made based on generalizations. Evidence collected from third parties cannot be used against the assessee without giving him a copy & an opportunity to rebut the same
Prakash Chand Bhutoria vs. ITO
(2018) TaxCorp(LJ) 15291 (ITAT-KOLKATA) · Section. 68
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ITAT - No disallowance of FTS u/s 40(a)(i) made to a Swedish entity. Benefit allowed under MFN clause.
M.S.K.Travels & Tours Ltd. Vs. ITO
(2018) TaxCorp(LJ) 15281 (ITAT-KOLKATA) · Section. 40(a)(i)
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ITAT - In absence of monetary consideration, the transaction doesn’t amount to slump sale u/s. 2(42C) r.w.s. 50B. However, no exemption u/s. 47(vib) as conditions of demerger stipulated in Sec. 2(19AA) weren’t fulfilled.
Datex Ohmeda (India) Pvt. Limited
(2018) TaxCorp(LJ) 15232 (ITAT-KOLKATA)
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S. 68 Bogus share premium: Addition cannot be made on the ground that the directors of the share subscribers did not turn up before the AO. The assessee can be required to prove only such facts which are in his knowledge. Creditworthiness of the subscriber cannot be disputed by the AO of the assessee but by the AO of the subscriber. If the assessee has discharged its onus to prove identity, creditworthiness & genuineness of the share applicants, the onus shifts to AO to disprove the documents furnished by assessee. In absence of any investigation, much less gathering of evidence by the AO, an addition cannot be sustained merely based on inferences drawn by circumstance (all judgements considered)
ITO vs. Wiz-Tech Solutions Pvt. Ltd
(2018) TaxCorp(LJ) 15185 (ITAT-KOLKATA) · Section 68
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S. 47(iv) Transfer/ Capital Gains: The term 'subsidiary company’ is not defined under the Income-tax Act and so will have to be given the meaning in s. 4(1)(c) of the Companies Act. A subsidiary of a subsidiary (step-down subsidiary) is also a subsidiary of the parent. Consequently, transfers between the holding company and the step-down subsidiary are not "transfers" which can give rise to capital gains or loss
Emami Infrastructure Ltd. Vs. ITO
(2018) TaxCorp(LJ) 14480 (ITAT-KOLKATA) · Section. 47(iv)
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ITAT - No capital loss allowed as sale of shares to its second step down 100% subsidiary is not transfer u/s. 47(iv).
Emami Infrastructure Ltd. Vs ITO
(2018) TaxCorp(LJ) 14436 (ITAT-KOLKATA) · Section 47(iv)
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S. 271(1)(c) Penalty: Conflict in law laid down by Bombay, Patna & Karnataka High Courts in Kaushalya 216 ITR 660 (Bom), Maharaj Garage (Bom), Samson Perinchery (Bom), Mithila Motors 149 ITR 751 (Pat) & Manjunatha Cotton & Ginning 359 ITR 565 (Kar) on whether the issuance of a s. 274 notice is merely an administrative device for informing the assessee about the proposal to levy penalty and mere mistake in the language used or mere non-striking of the inaccurate portion invalidates the notice or not explained. Impact of the conflicting law of the High Courts on Benches of the Tribunal in jurisdictional and non-jurisdictional States also explained
Jeetmal Choraria vs. ACIT
(2018) TaxCorp(LJ) 14193 (ITAT-KOLKATA) · Section. 271(1)(c)
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ITAT - No exemption u/s. 11 to where trust earned interest income on money lending to small help group, which is against object of assessee-trust and which amounts to commercial activities u/s 2(15).
Sreema Mahila Samity Vs. DCIT
(2017) TaxCorp(LJ) 13716 (ITAT-KOLKATA) · Section. 11
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ITAT - For deduction u/s 43B, there is no distinction between employees' and employer's contribution under PF Act. Thus once payment is made before due date u/s 139(1), deduction is allowable u/s 43B.
DCIT. vs. Teesta Valley Tea
(2017) TaxCorp(LJ) 13683 (ITAT-KOLKATA) · Section. 43B
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ITAT - Claim of receipt of bogus donation cannot be a ground for cancelling registration u/s 12AA as long as the objects of the trust are within the provisions of law.
Dr. B.G. Memorial Trust vs. CIT
(2017) TaxCorp(LJ) 13631 (ITAT-KOLKATA) · Section. 2AA
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ITAT - Addition made simply believing the Form 26AS will be an arbitrary exercise of power which cannot be sustained.
B.S. Consultancy Services Versus Income-tax Officer, Ward-51 (1), Kolkata
(2017) TaxCorp(LJ) 13592 (ITAT-KOLKATA) · http://taxcorp.in/FileOpenDT.aspx?ID=57878&Category=ITAT&CategoryType=Zip
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CBDT guidelines for scrutiny of cases: Law explained as to how the CBDT Guidelines for manual selection of cases for scrutiny have to be interpreted and whether CIT in granting approval is required to show application of mind and give reasons for his decision
M/s Brothers & Sisters Enterprise vs. JCIT
(2017) TaxCorp(LJ) 13520 (ITAT-KOLKATA)
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ITAT - Quarry land & development is an intangible asset being in nature of license for commercial right and for which the prescribed rate of depreciation as per the Income Tax Rules is at 25%.
DCIT, CC-XI, Kolkata Versus M/s Himalaya Granites Pvt. Ltd.
(2017) TaxCorp(LJ) 13501 (ITAT-KOLKATA) · http://taxcorp.in/FileOpenDT.aspx?ID=57618&Category=ITAT&CategoryType=Zip
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ITAT - Since assessee has paid tax on tax and not claimed exemption u/s 10(10CC) , there can not be any disallowance u/s 40(a)(v).
Asstt. DIT, International Taxation-1 (1) Kolkata Versus M/s. Joy Partnership And Vice-Versa
(2017) TaxCorp(LJ) 13406 (ITAT-KOLKATA) · http://taxcorp.in/FileOpenDT.aspx?ID=57439&Category=ITAT&CategoryType=Zip
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ITAT - Salary accrued to non-resident seafarers for services rendered outside India on foreign ships shall not be included in the total income merely because such salary was credited in NRE account in India.
Shyamak Gopal Chattopadhyay. vs. DDIT (I.T.)
(2017) TaxCorp(LJ) 13007 (ITAT-KOLKATA)
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ITAT - Cash payments made to West Bengal State Electricity Distribution Company Limited (WBSEDCL) is covered by the exception Rule 6DD(b) - No disallowance u/s. 40A(3).
Narayan Rice Mill Versus Commissioner of Income-tax
(2017) TaxCorp(LJ) 13004 (ITAT-KOLKATA) · http://taxcorp.in/FileOpenDT.aspx?ID=56547&Category=ITAT&CategoryType=Zip
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ITAT - TPO and the DRP were in error in holding that the nature of services rendered by ANPAP were in the nature of stewardship activity or shareholder activity. Charges paid by the Assessee to ANPAP are at Arm’s Length.
M/s. Akzo Nobel India Limited Versus D.C.I.T., Circle-10, Kolkata, And Vice-Versa
(2017) TaxCorp(LJ) 12961 (ITAT-KOLKATA) · http://taxcorp.in/FileOpenDT.aspx?ID=56361&Category=ITAT&CategoryType=Zip
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ITAT - No adddition on account of gain on settlement of loan either u/s 28(iv) or 41(1) as the instant loan was not utilized for the trading liability of the assessee and therefore the waiver off the same cannot amount to income which is chargeable to tax.
M/s J.K. Lakshmi Cement Ltd. Versus DCIT, Central Circle-VI Kolktaa, And Vice-Versa
(2017) TaxCorp(LJ) 12953 (ITAT-KOLKATA) · http://taxcorp.in/FileOpenDT.aspx?ID=56342&Category=ITAT&CategoryType=Zip
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