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Bogus Capital gains: Reliance by the AO on statements of third parties without giving the assessee an opportunity of cross-examination is a gross failure of the principles of natural justice and renders the assessment order a nullity
Anubhav Jain vs. ITO
(2018) TaxCorp(LJ) 16168 (ITAT-DELHI)
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S. 68 Bogus share premium: If the overwhelming evidence in the form of audited accounts, ROC Form 2 & ROC Form 20B shows the 'nature' of receipt to be share premium, it has to be taken to be so. If the Department wants to contend that what is apparent is not real, the onus is on it to prove that it was the assessee's own money which was routed through a third party. S. 68 does not (before & after the 2012 amendment) envisage the valuation of share premium. Consequently, the AO has no jurisdiction to determine whether the share premium is reasonable or not (Pratik Syntex (P.) Ltd. vs. ITO 94 taxmann.com 12 (Mum) distinguished)
DCIT vs. Piramal Realty Pvt. Ltd
(2018) TaxCorp(LJ) 16155 (ITAT-MUMBAI)
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Gains on exercise of ESOP: ESOP options provide valuable right to the assessee to exercise and have allotment of shares. They are thus 'capital asset' held by the assessee from the date of grant. If the assessee transfers the option itself, the capital gains will have to be assessed as long-term capital gains if the options have been held for more than three years (All relevant judgements considered and followed/ distinguished)
N. R. Ravikrishnan vs. ACIT
(2018) TaxCorp(LJ) 16154 (ITAT-BANGALORE)
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Professional Misconduct of CAs: A Chartered Accountant can be held guilty of professional misconduct even when he is acting as an individual in commercial dealings and is not acting as a CA nor discharging any function in relation to his practice as a Chartered Accountant. Under the CA Act, any action which brings disrepute to the profession or the Institute is misconduct whether or not related to professional work
Council of ICAI vs. Gurvinder Singh
(2018) TaxCorp(LJ) 16153 (SC)
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S. 2(47) Transfer: Law on whether conversion of preference shares into equity shares constitutes a "transfer" and whether capital gains can be assessed on the basis of the market value of the equity shares explained (Santosh L. Chowgule 234 ITR 787 (Bom) & Trustees of H.E.H. The Nizam 102 ITR 248 (AP) distinguished. CBDT Circular dated 12.05.1984 referred
Periar Trading Company Private Limited vs. ITO
(2018) TaxCorp(LJ) 16129 (ITAT-MUMBAI)
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S. 68 Black Money in HSBC Bank Account (i) Non-residents are not required to disclose their foreign bank accounts and assets to Indian income-tax authorities (ii) The assessee cannot be asked to prove the negative that the credits found in HSBC Bank is not sourced out of income derived from India (iii) the Govt / legislature never intended to tax foreign accounts of non residents (iv) mere holding of an account outside India does not have led to the conclusion that the amount is tax evaded
DCIT vs. Hemant Mansukhlal Pandya
(2018) TaxCorp(LJ) 16128 (ITAT-CHENNAI) · Section 68
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S. 17(2)(vi) Perquisite: Gains arising to an employee from sale of shares allotted under ESOP (Employees Stock Option Plan) by foreign parent company cannot be assessed as "salaries". It is assessable as "capital gains". Fact that employer has shown the gains as "perquisite" in Form 16 is irrelevant
Dr. Muthian Sivathanu vs. ACIT
(2018) TaxCorp(LJ) 16127 (ITAT-CHENNAI) · Section 17(2)(vi)
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MAT - No adjustment of disallowance u/s 14A required to be made in Book Profits for the purpose of Section 115JB.
LAQSHYA MEDIA LIMITED [EARLIER KNOWN AS “LAKQSHYA MEDIA PVT LTD.] VERSUS ASSISTANT COMMISSIONER OF INCOME TAX-10 (2) (1) , MUMBAI
(2018) TaxCorp(LJ) 16120 (ITAT-MUMBAI) · http://taxcorp.in/FileOpenDT.aspx?ID=68224&Category=ITAT&CategoryType=Zip
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ITAT - TDS u/s 194C - When the assessee is only a purchaser, if any advance sale consideration is paid, the assessee has no business to deduct the tax at source as it is for the seller of the sites to pay the capital gains depending upon the tax payable by him.
INCOME TAX OFFICER, TDS WARD-3 (3) , BANGALORE VERSUS M/S. THE COFFEE BOARD EMPLOYEES CO-OP HOUSING SOCIETY LIMITED
(2018) TaxCorp(LJ) 16119 (ITAT-BANGALORE) · http://taxcorp.in/FileOpenDT.aspx?ID=68225&Category=ITAT&CategoryType=Zip
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ITAT - Registration u/s 12AA - CIT while dealing with the application, unnecessarily exceeded to the issue of income derived by the Trust spend for charitable purposes and the profit earned by the Trust; which is to be done by AO at the time of determination of income u/s 11.
CRICKET FOR RAJKOT DISTRICT VERSUS THE CIT-II, RAJKOT
(2018) TaxCorp(LJ) 16118 (ITAT-RAJKOT) · http://taxcorp.in/FileOpenDT.aspx?ID=68227&Category=ITAT&CategoryType=Zip
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ITAT - Merely because trust was engaged in some unauthorized activity does not mean that it is not entitled to claim benefit u/s 80G by treating donation as bogus.
M/S. M.K. SHAH EXPORTS LTD. VERSUS A.C.I.T, CIRCLE-4 (1) , KOLKATA
(2018) TaxCorp(LJ) 16117 (ITAT-KOLKATA) · http://taxcorp.in/FileOpenDT.aspx?ID=68229&Category=ITAT&CategoryType=Zip
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HC - Section 50C is also applicable on lease hold property or khatedari land.
SH. SHARVAN KUMAR SHARMA S/O LATE SH. SUJI LAL VERSUS INCOME TAX OFFICER
(2018) TaxCorp(LJ) 16116 (HC-RAJASTHAN) · http://taxcorp.in/FileOpenDT.aspx?ID=74584&Category=Judgment&CategoryType=Zip
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HC - Section 14A disallows certain expenditure incurred to earn exempt income from being deducted from other income which is includible in the "total income" for the purpose of chargeability to tax.
PR. COMMISSIONER OF INCOME TAX, KOTA. VERSUS SHRI PRAKASH GWALERA, 28/311, GUMANPURA, KOTA.
(2018) TaxCorp(LJ) 16115 (HC-RAJASTHAN) · http://taxcorp.in/FileOpenDT.aspx?ID=74589&Category=Judgment&CategoryType=Zip
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ITAT - In case of irrevocable transfer of lands from the state government to the assessee corporation, assessee cannot be held as owner of the land and income not taxable in its hand.
MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION UDYOG SARATHI VERSUS DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTION) -2 (1) , MUMBAI
(2018) TaxCorp(LJ) 16114 (ITAT-MUMBAI) · http://taxcorp.in/FileOpenDT.aspx?ID=68199&Category=ITAT&CategoryType=Zip
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Entire law on whether complaint and sanction for prosecution of offenses can be quashed as being without proper application of mind explained in the context of s. 55 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (All judgements on the subject of prosecution of offenses discussed)
Srinidhi Karti Chidambaram vs. PCIT
(2018) TaxCorp(LJ) 16108 (HC-MADRAS) · Section 55
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S. 254(2): (i) Mere pendency of appeal in the High Court does not preclude the Tribunal's power of rectification, (ii) Fact that there is difference of opinion between the two members of the Tribunal would, by itself, nor mean that the error sought to be rectified is not apparent on the record & (iii) The Tribunal has no jurisdiction to recall an order based on submissions made and upon consideration of materials on record. The power of rectification are circumscribed with the condition that the same can be exercised for correcting error be of law or facts apparent on record. The jurisdiction to correct errors vested in the Tribunal is not akin to review powers
Shambhubhai Mahadev Ahir vs. ITAT
(2018) TaxCorp(LJ) 16107 (HC-GUJARAT) · Section 254(2)
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S. 4: Law on whether compensation received on closure/ termination of business activity resulting in loss of source of income, impairing its profit making structure or sterilization of profit making apparatus can be assessed as a revenue receipt or it is a capital receipt which is not chargeable to tax explained after referring to important judgements on the subject
DCIT vs. Rishabh Infrastructure Pvt. Ltd
(2018) TaxCorp(LJ) 16096 (ITAT-RAIPUR) · Section 4
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S. 253: Delay of 2819 days in filing the appeal caused by the fault of CA/ Counsel has to be condoned. the expression “sufficient cause” should be interpreted to advance substantial justice. If there is "sufficient cause", the period of delay cannot be regarded as excessive or inordinate (All judgements considered)
Midas Polymer Compounds vs. ACIT
(2018) TaxCorp(LJ) 16095 (ITAT-COCHIN) · Section 253
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S. 253 Condonation of delay: An assessee supported by large number of CAs & Advocates cannot seek condonation of delay on the ground that the officer handling the issue was transferred. A party cannot sleep over its rights and expect its appeal to be entertained. The fact that the issue on merits is covered in favour of the assessee makes no difference to the aspect of condonation of delay
Catholic Syrian Bank Ltd vs. DCIT
(2018) TaxCorp(LJ) 16093 (ITAT-COCHIN) · Section 253
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HC - merely earning the surplus does not result in to the conclusion, that assessee is carrying on its activities, which can be termed as business, trade, or commerce. Exemption u/s 11 cannot be denied.
DCIT (EXEMPTION) CIRCLE 1 (1), NEW DELHI VERSUS ERNET INDIA
(2018) TaxCorp(LJ) 16085 (HC-DELHI) · http://taxcorp.in/FileOpenDT.aspx?ID=74537&Category=Judgment&CategoryType=Zip
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