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S. 92B Transfer Pricing of AMP Expenditure: In the absence of material to suggest that there was an "arrangement, understanding or action in concert" with respect of the AMP expenditure incurred by the assessee, the TPO is not justified in coming to the conclusion that there was an international transaction u/s 92B and that the assessee should have recovered an amount from its AE. The request of the Dept for a remand to the TPO is not acceptable. A remand to the assessment stage cannot be a matter of routine; it has to be so done only when there is anything in the facts and circumstances to so warrant or justify
Moet Hennessy India Pvt Ltd vs. ACIT
(2018) TaxCorp(LJ) 15648 (ITAT-DELHI) · Section 92B
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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. 159/ 292B: There is no obligation on the part of the legal representatives of a deceased assessee to intimate the death of the assessee or take steps to cancel the PAN registration. A notice issued in the name of a dead person is unenforceable in law. The fact that the Revenue had no knowledge about the death of the assessee does not change the law. The defect is fatal and is not curable u/s 292B. The legal representatives are liable u/s 159 only if proceedings have already been initiated when the assessee was alive and are continued against the legal heirs
Alamelu Veerappan vs. ITO
(2018) TaxCorp(LJ) 15638 (HC-MADRAS) · Sections. 159, 292B
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Arrest for recovery of arrears: It is a question of confinement of a person in jail due to non-payment of tax dues. Since the recovery of outstanding dues has been stayed except deposit of specified amount, the TRO is ordered to arrange for release of the assessee immediately on deposit of said amount. Income Tax Authorities are directed to promptly do the necessary formalities including issue of release warrant to the Jail officials on compliance of the directions of the Tribunal
Devinder Singh Gill vs. DCIT
(2018) TaxCorp(LJ) 15637 (ITAT-CHANDIGARH)
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S. 276B, 279(1), 278E Prosecution for non-deposit of TDS: In the case of default, Mens rea has to be presumed to exist. It is for the accused to prove the contrary and that too beyond reasonable doubt. The plea that default in payment of TDS occurred due to delay by department in refunding excess TDS due to the assessee is not acceptable because amount deducted by way of TDS has to be deposited within prescribed time irrespective of any counter claim of the assessee
ITO. vs. VCI Hospitality Ltd.
(2018) TaxCorp(LJ) 15636 (HC-DELHI) · Sections. 276B, 279(1), 278E
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S. 147/ 148: The revenue played a subterfuge in trying to cover up its omission and in ante dating the record. The court hereby directs the Chief Commissioner to cause an inquiry to be conducted as to the involvement of the officials or employee in the manipulation of the record, and take strict disciplinary action, according to the concerned rules and regulations. This inquiry should be in regard to the conduct of the concerned AO posted at the time, who issued the notice under Section 147/148 as well as the officers who filed the affidavits in these proceedings
Prabhat Agarwal vs. DCIT
(2018) TaxCorp(LJ) 15635 (HC-DELHI) · Sections. 147, 148
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S. 254(2) Time limit for filing MA: Though the Tribunal has no power u/s 254(2) to condone delay in filing the MA, the High Court has power under Articles 226 and 227 of the Constitution of India to do substantial justice by condoning the delay. Injustice was done to the assessee because the Tribunal did not follow the binding judgement in Manjunatha Cotton and Ginning Factory 359 ITR 565 on the issue of levy of penalty u/s 271(1)(c). Accordingly, the delay in fling the MA deserves to be condoned
Muninaga Reddy vs. ACIT
(2018) TaxCorp(LJ) 15634 (HC-KARNATAKA) · Section. 254(2)
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S. 92 Transfer Pricing: (i) Chapter 10 presupposes the existence of “income” and lays down machinery provision to compute ALP of such income. S. 92 is not an independent charging section to bring in a new head of income or to charge tax on income which is otherwise not chargeable under the Act. If no income has accrued to or received by the assessee u/s 5, no notional income can be brought to tax u/s 92 of the Act (ii) It is a jurisdictional requirement that the AO has to record satisfaction that there is “income” or potential of income. The recording of 'satisfaction' about the existence of an "international transaction" is also essential. This is only within the jurisdiction of the AO and the CIT(A) cannot substitute his satisfaction for that of the AO. Such substitution of satisfaction is impermissible in law as it amounts to curing a jurisdictional defect
Shilpa Shetty vs. ACIT
(2018) TaxCorp(LJ) 15633 (ITAT-MUMBAI) · Section. 92
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S. 80-IC: An assessee who avails of deduction for a period of 5 years @ 100% of profits and gains is entitled to deduction on 'substantial expansion' for remaining 5 Assessment Years @ 25% (or 30% where the assessee is a company) and not @ 100% (Mahabir Industries v. PCIT 256 TM 201 (SC) distinguished)
CIT. vs. Classic Binding Industries, (Supreme Court)
(2018) TaxCorp(LJ) 15608 (SC) · Section. 80-IC
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Income-tax dues, being in the nature of Crown debts, do not take precedence even over secured creditors, who are private persons. Given s. 238 of the Insolvency and Bankruptcy Code, 2016, the Code will override anything inconsistent contained in any other enactment, including the Income-tax Act
PCIT. vs. Monnet Ispat And Energy Ltd.
(2018) TaxCorp(LJ) 15607 (SC)
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S. 40(a)(ii): Education cess is not part of tax. Accordingly, the same is allowable as a deduction and disallowance u/s 40(a)(ii) cannot be made. CBDT Circular referred
Chambal Fertilisers And Chemicals Ltd. vs. JCIT
(2018) TaxCorp(LJ) 15606 (HC-RAJASTHAN) · S. 40(a)(ii)
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S. 23(1)(c) vacancy allowance: The words 'property is let' does not mean 'property actually let out'. If property is held with an intention to let out in the relevant year coupled with efforts made for letting it out, it could be said that such a property is a let out property and the same would fall within the purview of s. 23 (1)(c) and be eligible for vacancy allowance. A reasonable approach should be taken on the assesse's attempts to let out and infallible proof should not be demanded
Sachin R. Tendulkar vs. DCIT
(2018) TaxCorp(LJ) 15605 (ITAT-MUMBAI) · S. 23(1)(c)
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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. 68: If no cash is involved in the transaction of allotment of shares and it is a case of book adjustment, provisions of s. 68 treating it as unexplained cash credit are not attracted. Even if it were to be assumed that the subscribers to the increased share capital are not genuine, the amount of share capital would in no circumstances be regard as undisclosed income of the company
V. R. Global Energy Pvt. Ltd. vs. ITO
(2018) TaxCorp(LJ) 15603 (HC-MADRAS) · Section. 68
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S. 37(1)/145(2): Entire law on accrual of liability under mercantile system of accounting explained in the context of Accounting Standard 4 (AS-4) (contingencies and events occurring after the balance sheet date) issued by the ICAI and s. 211 of the Companies Act, 1956, after referring to all important judgements of the Supreme Court and High Courts
CIT vs. The KCP Limited
(2018) TaxCorp(LJ) 15559 (HC-AP) · Sections 37(1), 145(2)
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S. 37(1): Law on whether payment of a one-time fee to continue the business of mining constitutes capital expenditure or revenue expenditure explained with reference to R.B.Seth Moolchand Sugachand v CIT 86 ITR 647 (SC) and Bikaner Gypsums 187 ITR 39 (SC)
PCIT vs. Rungta Mines Ltd
(2018) TaxCorp(LJ) 15558 (HC-CALCUTTA) · Section 37(1)
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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. 2(42A)/45: The law laid down in Suraj Lamps & Industries 340 ITR 1 (SC) that transfer of immovable property is effective only on registration of conveyance deed is not applicable for computing the holding period of property. Holding period should be computed from the date of issue of the allotment letter and not from the date of the conveyance deed (Rasiklal M. Parikh vs. ACIT 393 ITR 536 (Bom) distinguished)
Sanjaykumar Footermal Jain vs. ITO
(2018) TaxCorp(LJ) 15545 (ITAT-MUMBAI) · Sections 2(42A), 45
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S. 68/ 56(2)(viib)/ Rule 11 UA(2)(a): Law on whether share capital/ share premium received by a Company from investors can be assessed as 'unexplained cash credit' explained in the light of judgements of the Courts and Tribunal (All imp judgements referred)
Priyatam Plaschem Pvt. Ltd vs. ITO
(2018) TaxCorp(LJ) 15544 (ITAT-DELHI) · Sections 68, 56(2)(viib)
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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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