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S. 2(22)(e) Deemed Dividend: The argument of the Dept, based on Gopal and Sons (HUF) vs CIT 77 TM.com 71 (SC), that even though the assessee-recipient of money is neither the registered nor the beneficial shareholder of the payer company, the money should be assessed as "deemed dividend" is not correct (Scope of Gopal and Sons (HUF) vs CIT explained)
DCIT. vs. Gilbarco Veeder Root India Pvt. Ltd.
(2018) TaxCorp(LJ) 15486 (ITAT-MUMBAI) · Section. 2(22)(e)
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S. 269SS/ 271D Penalty: It is not enough for the assessee to show that the transaction of taking loan/ deposit by cash is genuine or bona fide. It has also to be shown that there was reasonable cause u/s 273B for the assessee being unable to take the loan/deposit by account payee cheque or account payee bank draft
Deepak Sales & Properties Pvt. Ltd vs. ACIT
(2018) TaxCorp(LJ) 15400 (ITAT-MUMBAI) · Sections 269SS, 271D
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S. 68 HSBC Black Money: The suspicion of the AO that the deposits in the foreign bank account have Indian origin is not unfounded because the assessee used his Indian passport to open the a/c. The intent of the assessee is not above board. Matter requires investigation because the narrations in the bank accounts do not give any clue that these amounts originate from India
DCIT. vs. Rahul Rajnikant Parikh
(2018) TaxCorp(LJ) 15367 (ITAT-MUMBAI) · Section. 68
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ITAT - Sec. 79 restriction on loss set-off and carry forward would apply in case of stake sale in closely-held company to widely-held company.
Edelweiss Commodities Services Ltd. Vs. ITO
(2018) TaxCorp(LJ) 15363 (ITAT-MUMBAI) · Section. 79
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S. 68 HSBC Black Money: The assessee being non-resident is not liable to tax in respect of money lying in the foreign country unless the AO bring something on record to show that assessee has not fulfilled the test of taxability of non-resident under the provisions of the Act
DCIT. vs. Dipendu Bapalal Shah
(2018) TaxCorp(LJ) 15356 (ITAT-MUMBAI) · Section 68
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S. 23 ALV: Unsold flats which are held by a builder as stock in trade cannot be brought to tax under the head 'income from house property'. They are only assessable as business profits when sold (All judgements considered)
ITO vs. Arihant Estates Pvt. Ltd., (ITAT Mumbai)
(2018) TaxCorp(LJ) 15355 (ITAT-MUMBAI) · Section 23
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S. 45/ 48: Portfolio Management Scheme (PMS) fees paid by the assessee to the PMS Manager neither falls under the category of transfer fees nor cost of acquisition/improvement. Consequently it is not deductible while computing capital gains from sale of the shares (All judgements referred)
Mateen Pyarali Dholkia vs. DCIT
(2018) TaxCorp(LJ) 15335 (ITAT-MUMBAI) · Sections. 45, 48
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S. 56(2)(viia) is a counter evasion mechanism to prevent laundering of unaccounted income under the garb of gifts. The primary condition for invoking S. 56(2)(viia) is that the asset gifted should become a “capital asset” and property in the hands of recipient. If the assessee-company has purchased shares under a buyback scheme and the said shares are extinguished by writing down the share capital, the shares do not become capital asset of the assessee-company and hence s. 56(2)(viia) cannot be invoked in the hands of the assessee company
Vora Financial Services P. Ltd. vs. ACIT
(2018) TaxCorp(LJ) 15317 (ITAT-MUMBAI) · Section. 56(2)(viia)
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S. 2(42C)/ 50B: A transaction by which an undertaking is transferred in consideration of the allottment of shares is an "exchange" and not a "sale". The fact that the agreement refers to the parties as "seller" and "purchaser" is irrelevant. S. 2(42C)/ 50B apply only to "sale" and not to "exchange". Entire law on "estoppel" explained. As there is no estoppel against a statute, an assessee is entitled to raise the claim regarding non-taxability at any stage of the proceedings
Oricon Enterprises Limited vs. ACIT
(2018) TaxCorp(LJ) 15303 (ITAT-MUMBAI) · Sections. 2(42C), 50B
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S. 139(5): There is no bar / restriction that an assessee cannot file a revised return of income after issuance of notice u/s 143(2). A revised return of income can be filed even in course of the assessment proceedings provided the time limit prescribed u/s 139(5) is available. The Departmental Authorities are not expected to deny assessee’s legitimate claim by raising technical objection
Mahesh H. Hinduja vs. ITO
(2018) TaxCorp(LJ) 15257 (ITAT-MUMBAI) · Section. 139(5)
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ITAT - There is no bar / restriction in the provisions of section 139(5) of the Act that the assessee cannot file a revised return of income after issuance of notice u/s. 143(2) of the Act.
Mahesh H. Hinduja vs. DCIT
(2018) TaxCorp(LJ) 15235 (ITAT-MUMBAI) · Section 139(5)
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ITAT - Capital gains pursuant to trading in Indian securities to a tax resident of Singapore is not taxable in India under Article 13(4) of India-Singapore DTAA.
D.B. International (Asia) Ltd. vs. DCIT
(2018) TaxCorp(LJ) 15233 (ITAT-MUMBAI)
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'On Money': The fact that the assessee has sold flats at an undervaluation does not mean that he has understated the consideration and earned undisclosed 'on money'. The mere presumption that excess price could have been charged is not a ground for coming to the conclusion that the assessee did charge a higher price. The burden of proving such understatement or concealment is on the Revenue (All important judgements considered)
M/s. Shah Realtors vs. ACIT
(2018) TaxCorp(LJ) 15229 (ITAT-MUMBAI)
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ITAT - Since CBDT circular 3/2015 was not applicable as the amounts paid by assessee were towards FTS, Sec. 40(a)(i) dis-allowance in 'entirety' upheld.
Chemical Process Piping Pvt. Ltd. Vs. Shri R. M. Madhavi, Erstwhile Additional CIT
(2018) TaxCorp(LJ) 15200 (ITAT-MUMBAI) · Section. 40(a)(i)
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ITAT - Subsidy for modernizing textile industry being capital in nature, to be excluded from book-profits u/s. 115JB.
Alok Industries Ltd. Vs. DCIT
(2018) TaxCorp(LJ) 15179 (ITAT-MUMBAI) · Section. 115JB
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S. 263 Revision: Explanation 2 to s. 263 inserted by the FA 2015 (which confers power upon the CIT to revise assessments where inadequate inquiries have been conducted by the AO) is prospective in nature and does not apply even to a case where the CIT passed the order after Explanation 2 came on the statute. The CIT should show that the view taken by the AO is unsustainable in law. The action of the CIT in directing the AO to conduct enquiry in a particular manner is contrary to the law interpreted by the Delhi High Court in CIT v. Goetze (India) Ltd 361 ITR 505. If such course of action is permitted, the CIT can find fault with each and every assessment order without making any enquiry or verification in order to establish that the assessment order is not sustainable in law
Indus Best Hospitality & Realtors Pvt. Ltd. vs. PCIT
(2018) TaxCorp(LJ) 15154 (ITAT-MUMBAI) · Section. 263
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S. 2(47)/ 45: Argument that the allotment of shares by the assessee's holding co to foreign investors at huge valuation results in a "transfer"/ "indirect transfer" of the assessee's assets to the foreign investors is not correct. Argument that a multi layered holding structure was deliberately created to avoid taxes in India and to conceal the information about the ultimate beneficiaries is also not correct
Supermax Personal Care Private Limited vs. ACIT
(2018) TaxCorp(LJ) 15093 (ITAT-MUMBAI) · Sections 2(47), 45
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Rule 45 of the Income Tax Rules which mandates compulsory e-filing of appeals before the CIT(A) w.e.f. 01.04.2016 is a procedural and technical requirement. It cannot defeat the statutory right of an assessee to file an appeal. An assessee who has filed the appeal in paper format should be permitted to make good the default and to file an appeal electronically
All India Federation of Tax Practitioners vs. ITO
(2018) TaxCorp(LJ) 14979 (ITAT-MUMBAI)
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S. 254(2) r.w Rule 34(5): Excessive delay by the Tribunal in passing judgement shakes the confidence of the litigants. Under Rule 34(5) of the Tribunal Rules read with Shivsagar Veg. Restaurant 317 ITR 433 (Bom) & Otters Club (Bom), orders have to be passed invariably within three months of the completion of hearing of the case. The delay is incurable. Even administrative clearance cannot cure the delay. Such decisions rendered after 3 months reflect a mistake apparant from the record and have to be recalled and the appeals heard afresh
Cromption Greaves Limited vs. CIT
(2018) TaxCorp(LJ) 14958 (ITAT-MUMBAI) · Section. 254(2)
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S. 68 Bogus share capital: The assessee has to justify the allottment of shares to outsiders at exorbitant premium with cogent material and not bald statements. The fact that s. 56(2)(viib) r.w.s. 2(24)(xvi) comes into effect from AY 2013-14 does not mean that for earlier years the assessee is not required to justify the identity, genuineness and creditworthiness of the transaction. The burden is very high for closely held companies. Mere submission of name & address, Balance Sheet & bank statement of the subscribers is not sufficient to discharge the onus (all judgements on the point considered)
Pratik Syntex Private Ltd. vs. ITO
(2018) TaxCorp(LJ) 14957 (ITAT-MUMBAI) · Section. 68
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