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S. 147/ 151: (i) Sanction granted by writing "Yes, I am satisfied" is not sufficient to comply with the requirement of s. 151 because it means that the approving authority has recorded satisfaction in a mechanical manner and without application of mind, (ii) If information is received from investigation wing that assessee was beneficiary of accommodation entries but no further inquiry was undertaken by AO, said information cannot be said to be tangible material per se and, thus, reassessment on said basis is not justified (All imp judgements referred)
Pioneer Town Planners Pvt. Ltd vs. DCIT
(2018) TaxCorp(LJ) 15498 (ITAT-DELHI) · Sections 147, 151
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S. 263 Revision: Even after the insertion of Explanation 2, the CIT has to show that the view of the AO is wholly unsustainable in law. It is only in a very gross case of inadequacy in inquiry or where inquiry is per se mandated on the basis of record available before the AO and such inquiry was not conducted, the revisional power so conferred can be exercised to invalidate the action of AO. Otherwise, every order of the AO would become susceptible to S. 263 and, in turn, will cause serious unintended hardship to the tax payer concerned for no fault on his part
Torrent Pharmaceuticals Ltd vs. DCIT
(2018) TaxCorp(LJ) 15497 (ITAT-AHMEDABAD) · Section 263
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Objection taken to SMS from Dept Advocate that what Court is “pressurising me to do is both wrong and unethical. No Advocate of any worth would stoop so low. Sorry I am not able to comply with this rather unusual demand”. The SMS is contrary to the statement made by the learned Additional Solicitor General. The SMS either stems from not understanding our view or it is a made up indignation so as to accuse of us of pressurizing him to do an activity not expected of an Advocate. It appears to be in the second category as the SMS appears to give a completely different twist to the facts as stated to him by Associate. Copy of order sent to CBDT Chairman
PCIT. vs. Starflex Sealing India Pvt. Ltd.
(2018) TaxCorp(LJ) 15491 (HC-BOMBAY)
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S. 254(2): If there is no discussion whatsoever by the Tribunal of the various case laws detailed in the submissions filed by the assessee, the order is non-speaking and has to be recalled. The Tribunal should take into account the material and case laws relied upon by the assessee during the hearing
Amore Jewels Private Ltd. vs. DCIT
(2018) TaxCorp(LJ) 15490 (HC-BOMBAY) · Section. 254(2)
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S. 43CB/ 145: Entire law on taxation of real estate construction contracts explained in the context of 'completed contract' vs. 'percentage completion' with reference to Accounting Standards AS-7 and AS-9 and all important judgements on the point
Ashoka Hi-Tech Builders Pvt. Ltd. vs. DCIT
(2018) TaxCorp(LJ) 15489 (ITAT-INDORE) · Sections. 43CB, 145
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S. 260A Transfer Pricing: Appeals against exclusion or inclusion of comparables to determine ALP of tested parties should not be filed in a ritualistic manner. Any inclusion or exclusion of comparables per se cannot be treated as a question of law unless it is demonstrated to the Court that the Tribunal or any other lower authority took into account irrelevant consideration or excluded relevant factors in the ALP determination that impact significantly
PCIT. vs. Barclays Technology Centre India Private Ltd.
(2018) TaxCorp(LJ) 15488 (HC-BOMBAY) · Section. 260A
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S. 139/ 153: When search operations are conducted u/s 132, the obligation of the assessee to file any return remains suspended till such time that a notice is issued for such purpose u/s 153A(1)(a). If the return is filed within the reasonable time permitted by such notice u/s 153A(1)(a), the return is deemed to have been filed within the time permitted u/s 139 (1)/ 139(3) and loss can be carried forward
Shrikant Mohta vs. CIT
(2018) TaxCorp(LJ) 15487 (HC-CALCUTTA) · Sections. 139, 153
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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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Article 5 Permanent Establishment (PE): The duration of 12 months specified to constitute a PE is activity specific qua the site, construction, assembly or installation project. Preparatory work for tendering of contract cannot be included in the period. The activity qua the project comes to an end when the work gets completed and the responsibility of the contractor with respect to that activity comes to end. Onus is heavily upon the revenue to establish that that assessee’s activity had crossed the threshold period of 12 months
Bellsea Ltd. vs. ADIT
(2018) TaxCorp(LJ) 15485 (ITAT-DELHI)
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S. 68 Bogus share capital: If copies of the share application form, share allotment Register and Bank Statements showing receipt of funds are on record and if all the shareholders have filed Affidavits declaring the fact that they are investing in the assessee-Company by issuing of cheques from their Accounts, the assessee has fulfilled the requirement of proving genuineness of the transaction, identity and creditworthiness of the shareholders/investors and addition cannot be made u/s 68
PCIT. vs. Acquatic Remedies Pvt. Ltd.
(2018) TaxCorp(LJ) 15484 (HC-BOMBAY) · Section. 68
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S. 56(2)(viib) vs. s. 68: Any premium received by a Company, in which the public does not have substantial interest, on sale of shares, in excess of its face value, can be treated as income from other sources u/s 56(2)(viib). This is not controlled by s. 68 which provides that if the assessee does not provide a satisfactory explanation for the credit, the amount can be assessed as income. If S. 68 is applicable, and the proviso is not satisfied, then the entire amounts credited to the books would be treated as income. If satisfactory explanation is offered as to the source, then the premium paid as revealed from the books will be brought to tax as income from other sources
Sunrise Academy of Medical Specialities (India) (P.) Ltd. vs. ITO
(2018) TaxCorp(LJ) 15483 (HC-KERALA) · Section. 56(2)(viib)
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S. 80-IA: There is a difference between "derived from the undertaking" and "derived from the business of the undertaking". The latter expression is wider than the former. Interest on fixed deposits from Bank and other interest are "derived from the business of the undertaking" and are eligible for deduction u/s 80-IA
Tema Exchangers Manufactures Pvt. Ltd. vs. ACIT
(2018) TaxCorp(LJ) 15467 (HC-BOMBAY) · Section. 80-IA
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S. 271(1)(c)/ 292B: The AO cannot initiate penalty on the charge of 'concealment of particulars of income', but ultimately find the assessee guilty in the penalty order of 'furnishing inaccurate particulars of income' (and vice versa). In the same manner, he cannot be uncertain in the penalty order as to concealment or furnishing of inaccurate particulars of income by using slash between the two expressions. Such error is not procedural but goes to the root of the matter and is not saved by s. 292B. The error renders the penalty order unsustainable in law
HPCL Mittal Energy Ltd. vs. ACIT
(2018) TaxCorp(LJ) 15466 (ITAT-AMRITSAR) · Sections. 271(1)(c), 292B
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S. 10(38) Bogus long-term gains from penny stocks: The transaction cannot be treated as bogus until and unless a finding is given that the shares were acquired by the assessee from the person other than the broker claimed by the assessee. The enquiry conducted by the Investigation Indore is not a conclusive finding of fact in view of the fact that the shares were duly materialized & held in the d-mat account. Merely supplying of statement to the assessee at the fag end of the assessment proceedings is not sufficient to meet the requirement of giving an opportunity to cross examine. The AO cannot proceed on suspicion without any material evidence to controvert or disprove the evidence produced by the assessee
Pramod Kumar Lodha vs. ITO
(2018) TaxCorp(LJ) 15465 (ITAT-JAIPUR) · Section. 10(38)
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S. 11: Entire law on what constitutes "advancement of objects of general public utility" so as to qualify as "charitable purpose" u/s 2(15) explained. Law also explained on the impact of carrying out incidental activity in the nature of trade, commerce or business in the course of actual carrying out of advancement of object of general public utility explained (All imp judgements referred)
Chandigarh Lawn Tennis Association vs. ITO
(2018) TaxCorp(LJ) 15456 (ITAT-CHANDIGARH) · Section. 11
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Entire law on interpretation of statues relating to 'purposive interpretation', 'strict interpretation', 'literal interpretation', etc explained. Difference in interpretation of statutes vs. exemption notifications explained. Q whether there is doubt or ambiguity in interpretation of a statute or notification benefit of doubt should go to the taxpayer or to the revenue explained. Law on Doctrine of substantial compliance and “intended use” also explained
Commissioner of Customs vs. Dilip Kumar
(2018) TaxCorp(LJ) 15455 (SC)
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S. 148/ 151: If the AO reopens the assessment by obtaining the sanction of the Commissioner of Income Tax instead of the Additional Commissioner of Income Tax, there is a breach of section 151 which renders the reopening void
CIT. vs. Aquatic Remedies Pvt. Ltd.
(2018) TaxCorp(LJ) 15442 (HC-BOMBAY) · Sections. 148, 151
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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. 260A: We are pained at this attitude on the part of the State to obtain orders of admission on pure questions of law by not pointing out that an identical question was considered by this Court earlier and dismissed by speaking order. Revenue has not carried out the assurance which was made earlier. Revenue should give proper explanation why assurance given earlier is not being followed. It is time responsibility is fixed and the casual approach of the Revenue in prosecuting its appeals is stopped
PCIT. vs. Starflex Sealing India Pvt. Ltd.
(2018) TaxCorp(LJ) 15434 (HC-BOMBAY) · Section. 260A
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S. 50C/ 54F: If the assessee has invested the entire sale consideration in new house property, the capital gains are exempt u/s 54F. The AO cannot apply s. 50C and treat the stamp duty valuation as the consideration and assess the difference between the stamp duty valuation and the actual valuation to capital gains (All judgements considered)
ITO. Vs. Raj Kumar Parashar
(2018) TaxCorp(LJ) 15433 (ITAT-JAIPUR) · Sections. 50C, 54F
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