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S. 147 reopening for bogus share application money: Merely because AO examined the transactions does not preclude him from subsequent inquiry if additional material prime facie shows that disclosures made by assessee were not true. Requirement of true and full disclosure runs through the entire assessment and does not end on filing of return. Reasons have to read as a whole. Mere non recitation of allegation reg failure of full & true disclosure does not invalidate the reasons or the fact that the reasons are based on allegations of lack of true and full particulars
Kalsha Builders Pvt Ltd vs. ACIT
(2019) TaxCorp(LJ) 16727 (HC-BOMBAY) · Section 147
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S. 254(2): The conduct of the assessee was speculative. It is not an uninformed litigant. it calculatedly chose not to question the rejection of its cross objection. Instead, waiting for the time till the two members who decided the first ITAT orders were not available and choosing to prefer the rectification application at a convenient time, the assessee no doubt technically was compliant, but stood exposed to the odium of forum shopping. ITAT's MA order reversed with costs of Rs. 1.5 Lakh imposed on the assessee
PCIT vs. N. R. Portfolio
(2019) TaxCorp(LJ) 16726 (HC-DELHI) · Section 254(2)
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SC - HC's order remanded as it did not contain the reason(s)/ground(s) for arriving at a particular conclusion.
Rashtradoot (HUF) Vs Commissioner of Income TaxI
(2019) TaxCorp(LJ) 16725 (SC)
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HC - The existence of a prima facie case, financial stringency and the balance of convenience are relevant factors while while exercising discretion in stay matters.
Mrs.Kannammal Vs ITO
(2019) TaxCorp(LJ) 16724 (HC-MADRAS)
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ITAT - Share-allotment date and not share-application is relevant for applicability of Sec.56(2)(viib) provision for shares allotted at a premium.
Cimex Land and Housing Pvt. Ltd Vs ITO
(2019) TaxCorp(LJ) 16723 (ITAT-DELHI) · Section 56(2)(viib)
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ITAT - NAV method of share valuation and not DCF to be adopted as per Rule 114A(2)(a) of the Income-tax Rules for valuing excess share premium receipt u/s 56(2)(viib).
TUV Rheinland NIFE Academy Pvt. Ltd Vs The ITO
(2019) TaxCorp(LJ) 16722 (ITAT-BANGALORE) · Section 56(2)(viib)
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S. 28(iv)/ 56(2)(viia)/ 47(vii): S. 56(2)(viia) is an anti-abuse provision which applies only to cases of bogus capital building and money laundering. It does not apply to an amalgamation where shares are allotted at alleged undervaluation. Increase in general reserves due to recording of assets of amalgamating company at FMV not give rise to any real income to the assessee. It is capital in nature. Amendment to s. 47(vii) by FA 2012 is clarificatory & retrospective
Aamby Valley Ltd vs. ACIT
(2019) TaxCorp(LJ) 16710 (ITAT-DELHI) · Sections 28(iv), 56(2)(viia), 47(vii)
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S. 276C Prosecution: Prosecution should not be launched hurriedly by the Dept during the pendency of case before the ITAT. The law of limitation u/s 468 Cr.P.C. for criminal prosecution has been excluded by the Economic Offences (Inapplicability of Limitation) Act, 1974 & so there is no need for hasty action. Meaning of "wilful attempt to evade tax" explained (All imp judgements referred).
Sayarmull Surana vs. ITO
(2019) TaxCorp(LJ) 16709 (HC-MADRAS) · Section 276C
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Explanation to s. 37(1): Law on concept of "expenditure incurred for any purpose which is an offence or which is prohibited by law" explained in the context of customs redemption fine. Ratio laid down in Hazi Aziz 41 ITR 350 (SC) continues to hold the field even post decisions in the case of Prakah Cotton Mills 201 ITR 684 (SC) and Ahmedabad Cotton Mfg Co 205 ITR 163 (SC). In neither of these two decisions, the ratio laid down in Hazi Aziz, which was a decision of Bench of three Judges, has been diluted (Pannalal Narottamdas 67 ITR 667 (Bom) distinguished)
PCIT vs. Sushil Gupta Legal Representative of Late Mahabir Prasad Gupta
(2019) TaxCorp(LJ) 16700 (HC-BOMBAY) · Section 37(1)
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S. 92C: Taxability under Transfer Pricing provisions of shares purchased at value in excess of FMV: As the transaction of purchase of equity shares is a capital transaction and does not give rise to any income, the transfer pricing provisions do not apply. Chapter X is a machinery provision. It can only be invoked to bring to tax any income arising from an international transaction. It is necessary for the revenue to show that income does arise from the international transaction. S. 2(24)(xvi) & 56(2)(viib) are prospective
PCIT vs. PMP Auto Components Pvt. Ltd
(2019) TaxCorp(LJ) 16699 (HC-BOMBAY) · Section 92C
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S. 92C Transfer Pricing: The TPO cannot re-characterize a transaction of subscription to redeemable preferential shares as being equivalent to interest free loans advanced by the assessee to the AE & charge notional interest thereon. The TPO cannot disregard the apparent transaction and substitute the same without any material or exceptional circumstances pointing out that the assessee had tried to conceal the real transaction or that the transaction in question was sham. The TPO cannot question the commercial expediency of the assessee entered into such transaction
PCIT vs. Aegis Limited
(2019) TaxCorp(LJ) 16698 (HC-BOMBAY) · Section 92C
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S. 22/ 23(4): The annual letting value (ALV) of unsold units of properties lying as stock in trade is not assessable as income under the head "Income from house property". The deeming provision of s. 23 cannot be extended beyond its ambit so as to cover the heads of income to which it does not operate. Taxing hypothetical income, which is otherwise not sanctioned by any provision under Chapter IV-D, cannot be permitted
M/s. Shree Balaji Ventures vs. ITO
(2019) TaxCorp(LJ) 16677 (ITAT-PUNE) · Section 22, 23(4)
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S. 147 Reopening of s. 143(1) Intimation for Bogus share capital: The AO cannot reopen without establishing prima facie that assessee's own money has been routed back in form of share capital. While he can rely on the report of the Investigation Wing, he has to carry out further examination and analysis in order to establish the nexus between the material and formation of belief that income has escaped assessment. In absence thereof, the assumption of jurisdiction u/s 147 has no legal basis and resultant reassessment proceedings deserve to be set-aside
Balaji Health Care Pvt. Ltd. vs. ITO
(2019) TaxCorp(LJ) 16676 (ITAT-JAIPUR) · Section 147
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S. 68 Bogus transactions: The AO cannot treat losses from off market commodity transactions as bogus and inadmissible in the eyes of the law if the transactions through the broker are duly recorded in the books of the assessee. The broker has also declared in its books of accounts and offered for taxation. To hold a transaction as bogus, there has to be some concrete evidence where the transactions cannot be proved with the supportive evidence. The fact that the broker was expelled from the commodity exchange cannot be the criteria to hold the transaction as bogus
PCIT vs. BLB Cables And Conductors Pvt. Ltd
(2019) TaxCorp(LJ) 16675 (HC-CALCUTTA) · Section 68
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S. 10(38) Bogus LTCG from Penny Stocks: Capital gains cannot be treated as bogus solely on the basis that the price of the shares has risen manifold and the reason for astronomical rise is not related to any fundamentals of market. If the transactions are duly proved by trading from stock exchange and the documentation is proper, the gains cannot be assessed as unexplained credit or as unexplained money
Mukta Gupta vs. ITO
(2019) TaxCorp(LJ) 16670 (ITAT-DELHI) · Section 10(38)
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S. 220(6) Stay of demand: The AO cannot impose the per se condition that pending consideration of the application for stay of demand, certain minimum amount (15%/ 20%) has to be deposited by the assessee as prescribed by the CBDT. He has apply his mind and decide the application for stay of demand
Turner General Entertainment Networks India Pvt. Ltd vs. ITO
(2019) TaxCorp(LJ) 16669 (HC-DELHI) · Section 220(6)
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S. 80-IC: An assessee availing exemption of 100% tax on setting up of a new industry, which is admissible for 5 years, and either on the expiry of 5 years or thereafter (but within 10 years) from the date when these assessees started availing exemption, they carried out substantial expansion of its industry, from that year the assessees become entitled to claim exemption @ 100% again (Classic Binding Industries 407 ITR 429 held not good law and reversed)
PCIT vs. Aarham Softronics
(2019) TaxCorp(LJ) 16668 (SC) · Section 80-IC
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ITAT - No penalty u/s 271(1)(c) in case where in response to a notice u/s 153A assessee furnishes a return disclosing higher income.
SHRI NITINBHAI TULSIDAS CHOTTANI D-21 VERSUS DCIT, CENT. CIR. 1 (3) AHMEDABAD.
(2019) TaxCorp(LJ) 16658 (ITAT-AHMEDABAD) · http://taxcorp.in/FileOpenDT.aspx?ID=70513&Category=ITAT&CategoryType=Zip
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HC - Deduction u/s 35DDA cannot be denied when one unit out of three closed down.
THE COMMISSIONER OF INCOME TAX-1, COCHIN VERSUS M/S. TCM LTD, KALAMASSERY
(2019) TaxCorp(LJ) 16657 (HC-KERALA) · http://taxcorp.in/FileOpenDT.aspx?ID=75694&Category=Judgment&CategoryType=Zip
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HC - Notice issued in the name of the dead person is not a procedural and / or clerical error and cannot be saved by Section 292B.
SUMIT BALKRISHNA GUPTA VERSUS ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 16 (2), MUMBAI & ORS.
(2019) TaxCorp(LJ) 16656 (HC-BOMBAY) · http://taxcorp.in/FileOpenDT.aspx?ID=75703&Category=Judgment&CategoryType=Zip
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