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ITAT - Provision for leave salary encashment and gratuity allowed as the same was made on the basis of actuarial valuation done by actuary and are ascertained liabilities.
The Asst. Commissioner of Income Tax-8 (3), Mumbai Versus Sanofi Synthelabo (India) Ltd.
(2017) TaxCorp(LJ) 12030 (ITAT-MUMBAI) · http://taxcorp.in/FileOpenDT.aspx?ID=54334&Category=ITAT&CategoryType=Zip
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Bogus purchases: As a direct one to one relationship/nexus between the purchases and sales has not been established by the assessee, the purchases have to be treated as bogus and 12% of the purchase cost is assessable as profits (law on the subject noted)
Kiran Navin Doshi vs. ITO
(2017) TaxCorp(LJ) 12025 (ITAT-MUMBAI)
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S. 10(38): If the AO has accepted the claim for exemption for long-term capital gains and conceded that the assessee is an "investor", he cannot change his stand and treat the assessee as a "trader" in respect of the claim of short-term capital gains alone
ITO vs. Dilip B. Desai HUF
(2017) TaxCorp(LJ) 12024 (ITAT-KOLKATA) · Section 10(38)
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S. 10(37) Capital Gains: Meaning of "compulsory acquisition" under the Land Acquisition Act, 1894 explained. The fact that the assessee entered into a settlement with the Collector regarding the compensation amount does not mean that the acquisition was not "compulsory" if the prescribed procedure was followed. Info Park Kerala vs. ACIT (2008) 4 KLT 782 overruled
Balakrishnan vs. UOI
(2017) TaxCorp(LJ) 12023 (SC) · Section 10(37)
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S. 9(1)(i)/ 9(1)(vi)/ 9(1)(vii)/ 40(a)(i): Law on whether payment by the assessee to non-resident parties for “call transmission services through dedicated bandwidth” is assessable as income accruing in India, royalty or fees for technical services and whether a disallowance can be made for failure to deduct TDS explained
Geo Connect Ltd vs. DCIT
(2017) TaxCorp(LJ) 12022 (ITAT-DELHI) · Section 9(1)(i), 9(1)(vi), 9(1)(vii), 40(a)(i)
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S. 9(1)(vi) 'Royalty' on transfer of software rights: There is a difference between sale of a 'copyrighted article' and the 'copyright' itself. S. 9(1)(vi) applies only to the latter and not the former. Explanation 4 inserted by FA 2012 w.r.e.f. 01.06.1976 has to be read and understood only in that context and cannot be expanded to bring within its fold transactions beyond the realm of the provision
CIT vs. Vinzas Solutions India Private Limited
(2017) TaxCorp(LJ) 12006 (HC-MADRAS) · Section 9(1)(vi)
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S. 45/48: The AO is not bound to accept the consideration stated in the sale deed. In a case where property is sold between arm’s length parties at a gross undervaluation, the onus is on the assessee to explain and if there is no explanation, the AO is entitled to draw an inference. The presumption against the value being understated (not undervalued) is greater where parties are connected or related. However, if the AO does not allege that the assessee received more consideration than is stated in the sale deed, he cannot made an addition to the stated consideration (George Henderson 66 ITR 622 (SC) & Gillanders Arbuthnot 87 ITR 407 (SC) explained)
Pr. CIT vs. Quark Media House India Pvt. Ltd
(2017) TaxCorp(LJ) 12005 (HC-P&H) · Sections 45/48
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S. 254(1)/ Rule 34(5)(c): The Tribunal is mandated to pass orders within 90 days of the hearing. Delay is not justified on the ground that 'administrative clearance' was obtained. The aggrieved party is entitled to seek recall of such an order
Otters Club vs. DIT
(2017) TaxCorp(LJ) 12004 (HC-BOMBAY) · Section 254(1)
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S. 147/ 151: The mere appending of the word "approved" by the CIT while granting approval u/s 151 to the reopening u/s 147 is not enough. While the CIT is not required to record elaborate reasons, he has to record satisfaction after application of mind. The approval is a safeguard and has to be meaningful and not merely ritualistic or formal
Pr. CIT vs. N. C. Cables Ltd
(2017) TaxCorp(LJ) 11977 (HC-DELHI) · Sections 147, 151
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S. 34 of the Evidence Act: Entries in loose papers/ sheets are irrelevant and inadmissible as evidence. Such loose papers are not “books of account” and the entries therein are not sufficient to charge a person with liability. Even if books of account are regularly kept in the ordinary course of business, the entries therein shall not alone be sufficient evidence to charge any person with liability. It is incumbent upon the person relying upon those entries to prove that they are in accordance with facts
Common Cause vs. UOI
(2017) TaxCorp(LJ) 11976 (SC) · Section 34
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S. 254(2): Facts recorded by the ITAT have to be accepted as correct and conclusive and cannot be contradicted by affidavit or otherwise. The mere placing of a case law in the paper book does not mean that it was cited before the ITAT and non-consideration thereof is not a mistake apparent from the record. A MA to rectify such alleged mistake of non-consideration of a judgement must be filed as quickly as possible
Ashish Gandhi Builders & Developers P. Ltd vs. ITAT
(2017) TaxCorp(LJ) 11975 (HC-BOMBAY) · Section 254(2)
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S. 9(1): Important law explained as to the taxability of export sale commission payments received by non-resident agents and the obligation of the assessee to deduct TDS thereon in the context of s. 9(1)(i)/ 9(1)(vii) of the Act and relevant provisions of the DTAA
DCIT vs. Welspun Corporation Limited
(2017) TaxCorp(LJ) 11949 (ITAT-AHMEDABAD) · Section 9(1)
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S. 92A Transfer Pricing: Important law explained on meaning of expression "associated enterprise". The mere fact that an enterprise has de facto participation in the capital, management or control over the other enterprise does not make the two enterprises "associated enterprises" so as to subject their transactions to the rigors of transfer pricing law
ACIT vs. Veer Gems
(2017) TaxCorp(LJ) 11948 (ITAT-AHMEDABAD) · Section 92A
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S. 37(1): Stock Options (appreciation rights) are intended to motive employees and so the expenditure thereon is a deductible revenue expenditure. The discount (difference between market price and vesting price) is allowable upon vesting subject to reversal if the options lapse
Religare Commodities Ltd vs. ACIT
(2017) TaxCorp(LJ) 11947 (ITAT-DELHI) · Section 37(1)
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S. 206AA: In case where payments have been made to deductees on the strength of the beneficial provisions of s. 115A(1)(b) of the Act or as per DTAA rates r.w.s. 90(2) of the Act, the provisions of s. 206AA cannot be invoked by the AO insisting to deduct tax @ 20% for non-availability of PAN
Quick Flight Limited vs. ITO
(2017) TaxCorp(LJ) 11946 (ITAT-AHMEDABAD) · Section 206AA
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S. 144C: The lapse committed by the AO in passing the assessment order without first passing a draft order, against which the assesee may file objections with the DRP, seeking its directions to the AO, is only a procedural irregularity, which does not impinge on the jurisdiction on the AO to pass the assessment order. The assessee has no vested right against procedure. However, as the lapse was held to be fatal in Vijay Television 369 ITR 113 (Mad), the same has to be followed
Daewon Kang Up Co. Limited vs. DDIT
(2017) TaxCorp(LJ) 11945 (ITAT-CHENNAI) · Section 144C
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Bogus capital gains from penny stocks: The fact that the Stock Exchanges disclaimed the transaction is irrelevant because purchase and sale of shares outside the floor of Stock Exchange is not an unlawful activity. Off-market transactions are not illegal. It is always possible for the parties to enter into transactions even without the help of brokers. Therefore, it is not possible to hold that the transactions reported by the assessee were sham or bogus
ACIT vs. Vineet Sureshchandra Agarwal
(2017) TaxCorp(LJ) 11930 (ITAT-AHMEDABAD)
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S. 9(1)(vi)/ 9(1)(vii): Important law explained on whether payment for use of equipment can be assessed as "royalty" and whether payment for rendering of services can be assessed as "fees for technical services" in the context of s. 9(1)(vi) and 9(1)(vii) and Article 12 of the India-Canada DTAA
DCIT vs. Bombardier Transportation India Pvt. Ltd
(2017) TaxCorp(LJ) 11929 (ITAT-AHMEDABAD) · Section 9(1)(vi), 9(1)(vii)
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Bogus capital gains from penny stocks: Long-term capital gains claimed exempt u/s 10(38) cannot be treated as bogus unexplained income if the paper work is in order. The fact that the Company whose shares were sold has violated SEBI norms and is not traceable does not mean that the assessee is at fault
Surya Prakash Toshniwal HUF vs. ITO
(2017) TaxCorp(LJ) 11907 (ITAT-KOLKATA) · Section 10(38)
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S. 9(1)(vii)/ Article 12: There is a difference between a 'contract of work' and a ‘contract of service’. In a 'contract of work', the activity is predominantly physical while in a 'contract of service', the dominant feature of the activity is intellectual. Fees paid with respect to a ‘contract of work’ does not constitute "fees for technical services" and consequently the assessee is not liable to deduct TDS u/s 195
ITO vs. Emami Paper Mills Ltd
(2017) TaxCorp(LJ) 11906 (ITAT-KOLKATA) · Section 9(1)(vii)
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