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Art 226: If an assessee obtains an order from the Court that the Dept should refund the seized amount but does not take steps to enforce the order beyond the period of limitation, he is guilty of laches and negligence. He is not entitled to file another Writ for enforcement of the earlier order. Such a litigant does not deserve any relief in the discretionary and equitable jurisdiction of the High Court
Kishore Jagjivandas Tanna vs. JDIT
(2018) TaxCorp(LJ) 15983 (HC-BOMBAY)
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S. 148: A notice u/s 143(2) issued by the AO before the assessee files a return of income has no meaning. If no fresh notice is issued after the assessee files a return, the AO has no jurisdiction to pass the reassessment order and the same has to be quashed
Sudhir Menon vs. ACIT
(2018) TaxCorp(LJ) 15966 (ITAT-MUMBAI) · Sections 143(2), 148
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S. 68 Bogus share capital: The ITAT is an adjudicator and not an investigator. It has to rely upon the investigation / enquiry conducted by the AO. The Dept cannot fault the ITAT's order and seek a recall on the ground that an order of SEBI, though available, was not produced before the ITAT at the hearing. The negligence or laches lies with the Dept and for such negligence or laches, the order of the ITAT cannot be termed as erroneous u/s 254(2)
ITO vs. Iraisaa Hotels Pvt. Ltd
(2018) TaxCorp(LJ) 15965 (ITAT-MUMBAI) · Sections 68, 254(2)
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ITAT - No TDS u/s. 194H applicable on discounts given on sale of Set Top Boxes and recharge vouchers.
Tata Sky Limited Vs Asst. CIT (TDS)
(2018) TaxCorp(LJ) 15959 (ITAT-MUMBAI) · Section 194H
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S. 68 Bogus share capital: If (a) the assessee has furnished the Name, Address, PAN no and Share Application Form to prove that the shares were allotted to the applicants and (b) the bank statement show that money was received through banking channels and there were no immediate withdrawals to suggest that the share application amounts have been returned back to these parties in cash, it means the assessee has discharged the primary onus cast upon it to prove the identity, capacity and genuineness of transactions
Sunshine Metals & Alloys vs. ITO
(2018) TaxCorp(LJ) 15931 (ITAT-KOLKATA) · Section 68
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S. 147/ 92: The information given by DIT (Inv) can only be a basis to ignite/ trigger "reason to suspect". The AO has to carry out further examination to convert the "reason to suspect" into "reason to believe". If the AO acts on borrowed satisfaction and without application of mind, the reopening is void (All judgements considered)
Devansh Exports vs. ACIT
(2018) TaxCorp(LJ) 15930 (ITAT-KOLKATA) · Sections 92, 147
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Reverses HC; Assessee not 'local authority' post 2002 amendment; Denies exemption u/s 10(20)
THE INCOME TAX OFFICER Vs URBAN IMPROVEMENT TRUST
(2018) TaxCorp(LJ) 15923 (SC) · Section 10(20)
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S. 10(20) Interpretation of statutes: Law on whether "functional test" as laid down in UOI vs. R.C. Jain, (1981) 2 SCC 308 is still good law explained in the context of whether the statutory functions conducted by a municipal committee enables it to qualify as a 'local authority'
ITO vs. Urban Improvement Trust
(2018) TaxCorp(LJ) 15919 (SC) · Section 10(20)
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S. 197 TDS: No functionary other than the officer referred to in the relevant statutory provision, namely section 197 and Rule 28AA of the Income Tax Rules, 1962, is permitted to take over the jurisdiction or interfere in the exercise of the discretionary power envisaged by this statutory provision. The concerned official has to record his satisfaction while issuing the TDS certificate
TLG India Private Limited vs. JCIT
(2018) TaxCorp(LJ) 15918 (HC-BOMBAY) · Section 197
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Search assessments. The time limit of 2 years u/s 153B for framing search assessment orders applies only to the original order and to orders passed after remand. The time limit for passing remand orders is governed by s. 153(3)/ erstwhile 153( 2A) & not by s. 153B. Limitation begins (for any purpose under the Act) from the point of time when the departmental representative receives the copy of a decision or an order of the ITAT
Surendra Kumar Jain vs. PCIT
(2018) TaxCorp(LJ) 15917 (HC-DELHI) · Sections 153(3), 153( 2A), 153B
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S. 23(1)(b), 50C: Law explained on (i) whether notional interest on interest-free security deposit can be added while computing annual value u/s 23(1)(b) & (ii) whether the interest-free security deposit can be treated as 'full value of consideration' u/s 50C as it was included in 'assessable value' by the Stamp Duty Valuation Authority
DCIT vs. Moni Kumar Subba
(2018) TaxCorp(LJ) 15916 (ITAT-DELHI) · Sections 23(1)(b), 50C
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S. 271C & 206AA Penalty: The assessee has made out a prima facie case that the outcome of the appeal before the ITAT will directly impact the penalty proceedings which are hurriedly being finalized by the authorities which may entail huge liability by way of penalty on the assessee. The Revenue authorities are accordingly restrained from passing any order imposing penalty on the assessee so long as the appeal is pending before the Tribunal (Wander 44 Taxman.com 103 (Bom) & GE India Technology 46 Taxmann.com 374 (Guj) followed)
Uber India Systems Pvt. Ltd vs. JCIT
(2018) TaxCorp(LJ) 15909 (ITAT-MUMBAI) · Sections 271C, 206AA
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S. 80-IC: Law on whether "assembly" constitutes "manufacture" explained in the context of several judgements. Allegation of the Dept that manufacture is not possible as the assessee has less number of employees, no sophisticated machinery and less electricity consumption considered
ITO vs. Sudarshan R. Kharbanda
(2018) TaxCorp(LJ) 15908 (ITAT-MUMBAI) · Section 80-IC
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Prosecution u/s 276-C/277: S. 278E carves out an exception to the rule of mens rea. The burden of proving the absence of mens rea is upon the accused. The absence needs to be proved not only to the basic threshold of “preponderance of probability” but “beyond reasonable doubt”. In every prosecution case, the Court shall always presume culpable mental state and it is for the accused to prove the contrary beyond reasonable doubt. This presumption is a rebuttable one
Arun Arya Vs. ITO
(2018) TaxCorp(LJ) 15907 (HC-J&K) · Sections 276-C, 277, 278E
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S. 68 Bogus share capital: Failure by the AO to offer cross-examination of the persons whose statements are relied upon means that no adverse inference can be drawn against the assessee. Dept's plea for a remand is not acceptable if the assessee has discharged primary onus (Nova Promoters 342 ITR 169 (Del) & Jansampark Advertising 375 ITR 373 (Del) distinguished). Paradise Inland 98 CCH 0417 followed
Rajat Exports Import (India) Pvt. Ltd vs. ITO
(2018) TaxCorp(LJ) 15901 (ITAT-DELHI) · Section 68
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S. 147: The computation of income is the basic document for making the s. 143(3) assessment. If there is a disclosure in the computation, it leads to the prima facie necessary inference that there is application of mind by the AO. The fact that the AO did not raise specific queries & is silent in the assessment order does not mean there is no application of mind (Techspan 404 ITR 10(SC) followed, other contra judgements distinguished)
State Bank Of India vs. ACIT
(2018) TaxCorp(LJ) 15900 (HC-BOMBAY) · Section 147
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S. 244: The Dept should bring some order and discipline to the aspect of granting refunds. All pending refund applications should be processed in the order in which they are received. It is the bounden duty of the Revenue to grant refunds generated on account of orders of higher forums and disburse the amount expeditiously. In the absence of a clear policy, the Courts may impose interest on the quantum of refund at such rates determined by the Court
SICOM Ltd vs. DCIT
(2018) TaxCorp(LJ) 15884 (HC-BOMBAY) · Section 244
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S. 5, 9, 163, 166: A representative assessee represents all income of a non-resident accruing or arising in India directly or indirectly from any business connection in India. It is wrong to contend that the representative assessee is not liable for income which has directly arisen or accrued in India. It is also wrong that if the department chooses to make an assessment of the person resident outside India directly, it cannot assess the agent or representative assessee. The Dept has the choice of proceeding against either
DIT vs. Board Of Control For Cricket In Sri Lanka Through PILCOM
(2018) TaxCorp(LJ) 15883 (HC-CALCUTTA) · Sections 5, 9, 163, 166
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Tax Planning: The fact that the assessee bought and sold shares of groups concerns with a view to book loss and off-set the capital gains from another transaction does not mean that the loss can be treated as bogus if the documentation is in order. The loss cannot be treated as "speculation loss" under the Explanation to s. 73 because the shares were held as investments
ACIT vs. RJ Corp Ltd
(2018) TaxCorp(LJ) 15882 (ITAT-DELHI)
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S. 260A: Transfer Pricing disputes with regard to exclusion and inclusion of comparables to determine Arm's Length Price (ALP) would not necessarily give rise to substantial questions of law except if there is perversity of finding or failure to adhere to the settled principles of law while determining comparables
PCIT vs. TIBCO Software (India) Pvt Ltd
(2018) TaxCorp(LJ) 15870 (HC-BOMBAY) · Section 260A
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