HIGH COURT RULING. CIT, Bangalore Vs Sasken Communications Tech Ltd (Dated: August 2, 2011)

Transcription

1 HIGH COURT RULING 2011-TIOL-712-HC-KOL-IT Brooke Bond India Ltd Vs JCIT (Dated: March 1, 2011) Income Tax Sections 36(1), 37, 40A(9) - Whether an employer maintaining account on the basis of mercantile system is entitled to deduction on actuarial basis for discharging any liability on account of unapproved pension scheme TIOL-711-HC-KAR-IT CIT, Bangalore Vs M/s Yokogawa India Ltd (Dated: August 9, 2011) Income tax Sections 2(45), 10A, 32(1), 72, 80B Whether deduction u/s 10A is allowable without setting off of the brought forward loss and unabsorbed depreciation of other units TIOL-710-HC-DEL-IT CIT Vs M/s Amway India Enteprises (Dated: November 4, 2011) Income Tax - Section 37 - Whether the expenses incurred on purchase of software are in the nature of revenue expenditure - Whether the expenses incurred on improvement of leasehold premises, are in the nature of revenue expenditure TIOL-709-HC-KAR-IT CIT, Bangalore Vs Sasken Communications Tech Ltd (Dated: August 2, 2011) Income Tax - Section 10B(2) - Whether when the reconstruction of business is allowed by the Dept. of Telecommunications, the assessee would be entitled to claim exemption u/s 10B as per the mandatory restriction imposed under clause (ii) of Section 10B(2) TIOL-705-HC-DEL-IT CIT Vs M/s Asahi India Safety Glass Ltd (Dated: November 4, 2011) Income Tax Section 37(1) - Whether the expenditure incurred by the assessee on account of application software is revenue expenditure and hence allowable in the computation of income.

2 2011-TIOL-704-HC-ALL-IT CIT Vs Smt Usha Omer (Dated: July 26, 2011) Income tax Section 132(4) - Whether the AO can reject the claim of the assessee of receipt of gift from the NRI in foreign exchange though the recipient of IDB is not expected to disclose the identity from whom the IDBs are received under the provisions of Remittance of Foreign Exchange and Investment in Foreign Exchange Bonds (Immunities and Exemptions) Act, TIOL-702-HC-DEL-IT CIT Vs Nectar Lifesciences Ltd (Dated: October 20, 2011) Income tax Section 80HHC Whether the interest earned on FDRs which had direct nexus with the business, as based on lien of these FDRs the bank provided the facility of letter of credit to the assessee, is not to be excluded from the business profit while computing deduction u/s 80HHC TIOL-700-HC-KOL-IT Azimganj Estate Pvt Ltd Vs CIT, Kolkata (Dated: September 13, 2011) Income tax Section 22 Whether income from unsold flats of a builder, given on rent, is to be treated as income from house property or income from business TIOL-699-HC-KOL-IT ISG Traders Ltd Vs CIT, Kolkata (Dated: September 22, 2011) Income Tax - Sections 14A, 36(1)(iii) - Whether the Tribunal committed any illegality in applying Section 14A to the pending proceedings which has retrospective operation TIOL-698-HC-AHM-IT CIT Vs M/s Gamdiwala Dairy (Dated: October 18, 2011) Income Tax - Sections 40A(3), 145, Rule 6 - Whether exception provided in rule 6 is applicable where goods are directly purchased from the manufactures not using machinery in cottage industry - Whther rejection of books of account pre -supposes defect in books otherwise rejection of the same is not tenable TIOL-693-HC-MUM-IT CIT, Mumbai Vs M/s Kotak Securities Ltd (Dated: October 21, 2011) Income tax Sections 40(a)(ia), 194J Whether the assessee is liable to deduct tax at source on the payments to be made to stock exchanges as fees for rendering managerial services.

3 2011-TIOL-692-HC-DEL-IT Arcotech Ltd Vs Director Of Income Tax (Recovery) & Ors (Dated: November 1, 2011) Income tax Sections 72, 115JB Whether the Revenue has wrongly rejected the claim of the assessee for granting the benefit u/s 72 when a request was made by the assessee company as per the order of BIFR treating it as withdrawn TIOL-691-HC-DEL-IT Oriental Longman Ltd Vs UoI ETC (Dated: October 24, 2011) Income Tax - Chapter XXC - Whether, in view of the subsequent tripartite agreement in the year 1990 and a fresh allotment letter, provisions of Chapter XXC are applicable when the allotment letter is issued in the year TIOL-690-HC-KAR-IT CIT, Bangalore Vs M/s Bangalore Leather And Leather Crafts Ltd (Dated: September 5, 2011) Income Tax - Section 269-SS - Whether section 269-SS is attracted when assessee receives advance from sister concern for the job work done and such payment is reflected in their accounts TIOL-689-HC-MAD-IT CIT, Madras Vs M K Shanmugam (Dated: September 23, 2011) Income tax Sections 68, 69C, Whether when the assessee fails to prove the genuineness of the transactions by submitting the supporting documents and the returns are filed after the due date, the additions made by the AO on the basis of the findings during the search proceedings, is rightly made TIOL-688-HC-MAD-IT CIT, Chennai Vs M/s ATC Ltd (Dated: September 29, 2011) Income tax Section 80HHC Whether while computing the deduction allowable u/s 80HHC, the assessee who was carrying two different trades, since the assessee had suffered loss as per sub-sections (1) and (3)(a), will not be entitled for deduction even though the turnover of the second trade is not included in the total turnover TIOL-687-HC-MAD-IT CIT, Tiruchirappalli Vs R Mohan (Dated: September 26, 2011) Income tax Section 36(1) Whether the assessee is entitled to claim interest expenditure on the borrowed funds which were diverted to non business objects.

4 2011-TIOL-686-HC-KOL-IT Smt Shashi Kalalshah Vs CIT, Kolkata (Dated: September 29, 2011) Income tax Whether where the assessee discharges its burden of proof for the loan received by proving the identity of the lender, creditworthiness and genuineness of the transaction by submitting the affidavit from the lender, the bank account and the repayment of the loan later on, no disallowance can be made for the interest paid on such loan claimed as expenditure TIOL-684-HC-KAR-IT CIT, Bangalore Vs M/s Tata Elxsi Ltd (Dated: August 30, 2011) Income tax Sections 10A, 80HHC Whether while computing the exemption u/s 10A if the export turnover in the numerator is to be arrived at after excluding certain expenses, the same should also be excluded in computing the export turnover as a component of total turnover in the denominator TIOL-683-HC-DEL-IT CIT Vs Delhi Public School (Dated: October 31, 2011) Income tax Sections 201(1), 201(1A), Rule 3(5) Whether where unless the inference, that the income of the employees has not been calculated correctly while deducting the tax at source, can be reasonably raised against an employer, it cannot be held that he has not deducted tax on the estimated income of the employee and cannot be treated as an assessee in default TIOL-682-HC-DEL-IT CIT Vs Harnarain (Dated: October 31, 2011) Income tax Section 271(1)(c) Whether if the assessee offers the amount of gift received to buy peace with Revenue and submits the confirmation with respect to the gift received and also the fact that the AO finds nothing bogus, even then penalty u/s 271(1)(c) can be levied for concealment of income and furnishing of inaccurate particulars TIOL-681-HC-DEL-IT CIT, Delhi Vs Nectar Life Science Ltd (Dated: October 20, 2011) Income tax Section 80HHC Whether where the AO himself accepts that the interest income earned on FDRs is having direct nexus with the business income and is a part of business income, it cannot be excluded from the profit while computing deduction u/s 80HHC.

5 2011-TIOL-680-HC-ALL-IT CIT, Kanpur Vs Smt Pushpa Vaish (Dated: October 10, 2011) Income tax Section 23(1)(a), (b) Whether addition u/s 23(1)(a) is called for when assessee rents out its property to a group company which in turn sub-leases the same at three times the rent received by the assessee TIOL-676-HC-DEL-IT M/s Bharat Gears Ltd Vs CIT, New Delhi (Dated: June 30, 2011) Income tax Section 31 Whether expenditure incurred on reconditioning of machinery, lying idle in a broken-down condition, but produces benefit of enduring nature on repair, is to be treated as revenue expenditure TIOL-675-HC-DEL-IT CIT Vs Lord Buildcons Pvt Ltd (Dated: September 9, 2011) Income Tax - Whether when assessee purchases ground floor and then enters into agreement with other flat owners to demolish and construct five floors, including basement, and retain the three floors after giving back the two floors to other flat owners, the cost of construction is to be found out by dividing the total costs by three or five TIOL-674-HC-MUM-IT CIT, Nagpur Vs M/s Sunflag Iron & Steel Co Ltd (Dated: October 21, 2011) Income Tax - Sections 37, 80HHC - Whether the expenditure incurred in repair of the transformer can be considered as Revenue Expenditure - Whether deduction u/s 80HHC can be computed if the assessee did not have any eligible profit TIOL-673-HC-KAR-IT CIT, Bangalore Vs M/s Digital Global Soft Ltd (Dated: September 19, 2011) Income Tax - Sections 154, Whether the order passed by the AO giving credit for the amount paid by way of tax deducted at source and consequently directing refund when, the assessee has not claimed the said amount in the returns filed, is valid TIOL-672-HC-P&H-IT CCE Vs M/s Sudarshan Cables Industries (Dated: October 03, 2011) Income Tax - Sections 54, 139, 142(1) - Whether section 139(4) is applicable in respect of cases covered under section 54(2).

6 2011-TIOL-666-HC-P&H-IT Sanatan Dharam Shiksha Samiti Vs CCIT, Panchkula (Dated: October 3, 2011) Income tax Section 10(23C)(vi) Whether where the main object of the trust is to impart education, the exemption claimed u/s 10(23C)(vi) cannot be denied on the basis that such activities generated some profits for the assessee TIOL-665-HC-P&H-IT CIT, Ludhiana Vs M/s Varinder Agro Chemicals Limited (Dated: October 14, 2011) Income tax Section 36(1)(iii) Whether where the loan is given to the sister concern without any commercial expediency and no interest is charged on such loan, the interest paid on borrowings utilized for advancing the money to sister concern could not be allowed u/s 36(1)(iii) TIOL-664-HC-MUM-IT M/s Direct Information Pvt Ltd Vs ITO (Dated: September ) Income Tax Sections 10A, 147 Whether the activities of domain name registration and web hosting services are not covered under the head of 'website services' Whether the AO, without having any tangible material before him, can reopen the assessment merely on the ground that there is a change in the view of the AO and he subsequently believes that the view of the earlier AO was incorrect TIOL-663-HC-MUM-IT CIT, Mumbai Vs Naishadh V Vachharajani (Dated: September ) Income tax - capital gains vs business income - Whether when assessee carries on trading in shares and also makes investments in shares, income from transfer of shares is to be treated as capital gains or business income TIOL-662-HC-P&H-IT CIT, Rohtak Vs Gaur Brahmin Vidya Pracharini Sabha (Dated: October 3, 2011) Income tax Sections 2(15), 80G Whether the CIT cannot reject the application for registration u/s 80G when the object of the society is for charitable purpose by imparting education and registered u/s 12A even though it charges fee TIOL-660-HC-MUM-IT Yash Raj Films Pvt Ltd Vs ACIT (Dated: October 17, 2011) Income tax Sections 132A, 133A, 147, 148 Whether where certain documents

7 were found during survey proceedings and the AO had tangible material into his possession for a reason to believe of escapement of income, the reassessment proceedings were rightly initiated within a period of four years from the end of the relevant AYs TIOL-659-HC-MUM-IT The Metal Rolling Works Ltd Vs CIT, Mumbai (Dated: October 11, 2011) Income tax Section 271(1)(c) - Capital Gain Year of taxability Whether where the assessee discloses all the facts truly, no penalty can be levied for concealment of income treating the capital gain arising in a year other than the year in which the assessee offered the amount as taxable particularly when the AO himself was not sure in which year, the capital gain was to be taxed TIOL-658-HC-MUM-IT CIT, Mumbai Vs M/s Runwal Developers Pvt Ltd (Dated: October 5, 2011) Income Tax - Section 28 - Whether maintenance charges towards the promotion and upkeep of the Mall are liable to be assessed as 'business income'' or as income from house property TIOL-657-HC-P&H-IT M/s Om Sons International Vs CIT, Jalandhar (Dated: July 12, 2011) Income tax Sections 147, 148 Whether where the assessee appears in the assessment proceedings, it cannot be said later on before any appellate authority that the notice was not duly served after the insertion to section 292BB w.e.f Whether where the return is processed u/s 143(1) only, it cannot be considered that there was merely a change of opinion while issuing notice u/s 148 as no opinion is formed in summary assessment u/s 143(1) TIOL-652-HC-MUM-IT Sanand Properties Pvt Ltd Vs JCIT (Dated: September 23, 2011) Income tax Section 148 Whether when all the facts relating to which notice u/s 148 is issued were disclosed and were duly considered by the assessing officer while making the original assessment, no notice u/s 148 can be issued for merely change of opinion TIOL-651-HC-MUM-IT CIT, Pune Vs Hindustan Feeds MFG Co (Dated: October 11, 2011) Income tax - Sections 80IB, Whether Sec 80IB benefits can be denied even if assessee gives undertaking that it had purchased new plants and the same was not created by splitting up existing units.

8 2011-TIOL-647-HC-DEL-IT CIT Vs Mohair Investment And Trading Co Pvt Ltd (Dated: September 30, 2011) Income Tax Sections 14A, 271(1)(c), Whether section 275(1)(A) disentitles Revenue from availing limitation period of six months from the end of the month when the order of the ITAT is received by the AO so as to levy penalty u/s 271(1)(c) TIOL-646-HC-DEL-IT M/s Jewellers Om Prakash Vs CCIT, Delhi (Dated: September 9, 2011) Income Tax Sections 132(5), 143(3), 220(2A), 234A, 234B, 234C, 250, 271(1)(c) Whether the petition by the assessee before the Chief Commissioner of Income Tax seeking waiver of interest u/s 220(2) can be rejected on a summary basis without dealing with the contentions and grounds raised by the assessee TIOL-645-HC-DEL-IT CIT Vs Manoj Aggarwal (Dated: September 30, 2011) Income Tax Sections 131, 132, 158BC, 158BFA - Whether the tribunal erred in deleting addition of Rs.18,10,079/- on account of commission income earned by the assessee on transactions stated to be jewellery transactions relating to BJPL - Whether the tribunal is right in law in deleting the addition of Rs.11,71,900/- on account of cash found during the course of search - Whether the tribunal is correct in law in deleting the addition of interest charged u/s 158BFA(1) TIOL-644-HC-DEL-IT CIT Vs M/s National Travel Services (Dated: July 11, 2011) Income Tax Section 2(22)(e) Whether, for the purpose of Section 2(22)(e) of the Act, when the loan is given by the closely-held company to the partnership firm where the shareholder of the company is also the partner, partnership firm is to be treated as the shareholder and it is not necessary that it has to be a 'registered shareholder' Whether, in order to attract the provisions of Section 2(22)(e) of the Act, is it necessary that the person who has received the advance or loan should be a shareholder and also beneficial owner TIOL-643-HC-KOL-IT Rajendra Kumar Dabriwala Vs CIT, Kolkata (Dated: September 29, 2011) Income Tax Section 36(1)(iii) Whether, when the assessee obtained substantial amount of loan from various persons and at the same time, substantial amount of loan was given to different parties, the interest paid on borrowings can be disallowed

9 on the ground that loans were not given for the sake of business transactions but simply the loans taken were transferred to the parties by way of loan and the assessee acted as conduit of such loan transactions TIOL-641-HC-DEL-IT Vipul Medcorp Tpa Pvt Ltd Vs CBDT (Dated: September 30, 2011) Income Tax Sections 2(13), 2(31), 2(36), 14, 28(va), 119, 194J, 204, Circular No 8 of 2009 Whether the circular No. 8/2009 requiring deduction of TDS when payment is made by TPA to a corporate hospital is ultra vires and contrary to Section 194J of the Act Whether, for determining as to whether the payment made is towards fee for professional services, the nature and character of the payment is relevant or the manner in which the payment is accounted for by the payer is relevant - Whether for the purpose of section 194J, the hospital being a corporate and hence an artificial person, cannot be said to render professional services - Whether for the purpose of section 194J, the recipient is restricted to an individual who carries on medical profession or other professions TIOL-640-HC-DEL-IT Raju Bhojwani Vs CCIT (Dated: September 9, 2011) Income tax Sections 80HHC, 147, 234B, 234C Whether the assessee is not entitled to deduction u/s 80HHC if the net result of loss / profit from both export of self-manufactured goods and trading goods, is a loss Whether the interest u/s 234B cannot be waived in view of the circular issued 23rd May, 1996 and 30th January, 1997 as there was no decision of the Jurisdictional High Court and Supreme Court on the issue of addition due to which the interest is liable TIOL-639-HC-P&H-IT CIT, Ludhiana Vs M/s Sharman Woolen Mills Ltd (Dated: September 28, 2011) Income Tax - Section 2(22)(e) - Whether loan advanced to the assessee can be treated as dividend in terms of Section 2(22)(e) even if the assessee is not a shareholder of the lending company TIOL-638-HC-KOL-IT ICI India Limited Vs CIT, Kolkata (Dated: September 29, 2011) Income Tax Sections 44AB, 115J, 143(1) & (3), 154, Whether the provision made towards irrecoverability of the debt and advances is a provision for liability and hence required to be added back for the purpose of section 115J - Whether an AO while assessing a company for income tax u/s 115J of the Act can question the correctness of the P&L a/c prepared by the assessee company and certified by the statutory auditors of the company.

10 2011-TIOL-637-HC-HP-IT M/s Asia Resorts Ltd Vs CIT (Dated: September 07, 2011) Income Tax Sections 254(1) & (2) - Whether the Tribunal can only rectify the mistake of fact apparent from the record, and no rectification is possible if the question is debatable Whether the ITAT can exercise its jurisdiction u/s 254(2) of the Act in respect of the error, which is not self-evident or to be detected by a process of reasoning on the face of the record Whether mere possibility of two views on the subject can be a ground for review or rectification of an order TIOL-636-HC-DEL-IT CIT Vs R J Wood Pvt Ltd (Dated: January 25, 2011) Income Tax Section 23 Whether maintenance and other charges are deductible from rent while calculating Annual Letting Value of the property Whether the arrears of rent received by the assessee pursuant to the final order passed by the court can be taxed in the relevant year to which the rent relates TIOL-634-HC-KOL-IT DIT, Kolkata Vs Income Tax Settlement Commissioner Additional Bench, Kolkata (Dated: August 1, 2011) Income Tax Sections 143, 144, 147, 148, 153(1), 245A, 245C, 245D Whether, even if there are no pending proceedings with the Revenue, settlement applications filed before Settlement Commission are maintainable - Whether furnishing of a return of income is mandatory for making an application for settlement - Whether no income tax proceedings can be said to exist where no return has been filed by the assessee Whether a case would be deemed to be pending until an order of assessment is actually made, even though the time for making an order of assessment might long have expired Whether the assessee would be entitled to apply for settlement before the Settlement Commission, even though no returns had been filed and the time for making assessment u/s 143 had expired TIOL-633-HC-DEL-IT Minda Huf Limited Vs UoI (Dated: September 26, 2011) Income Tax Sections 41, 143(3), 147, 148 Whether the reassessment proceedings can be initiated on the ground that the assessee had failed to substantiate the claim of deduction in the computation of income in the original assessment proceedings Whether specific denial of the allegations made by the assessee in the pleadings for objecting the reasons for reassessment proceedings is necessary by the Revenue TIOL-632-HC-MAD-IT CIT, Madurai Vs Kas Mathivanan (Dated: August 1, 2011) Income Tax - Whether no disallowance is warranted if future payments are made out

11 of funds available in suspense account TIOL-631-HC-KAR-IT CIT, Gulbarga Vs M/s Jupiter Bio-Science Ltd (Dated: August 3, 2011) Income Tax - Sections 115JB, 234B, 234C - Whether Sections 234-B and 234C are attracted if the income is computed by applying the provisions of Section 115JB TIOL-630-HC-KAR-IT CIT, Bangalore Vs M/s Canfin Homes Ltd (Dated: August 1, 2011) IncomeTax - Section 36(1)(viii), 145(2) - Whether interest income from Bonds of NHB and dividend income can be assessed under the head "Business income" and deduction u/s 36(1)(viii) is allowable - Whether if account clearly states that a particular income is due but it is not possible to recover the same, it is to be brought to tax TIOL-629-HC-KAR-IT M/s Sharavathy Steel Products Pvt Ltd Vs ITO, Bangalore (Dated: August 11, 2011) Income Tax - Section 80IA - Whether the commission earned can be considered as a "profit or gain from any business of an industrial undertaking" for the purpose of deduction u/s 80IA TIOL-628-HC-DEL-IT Dalmia Pvt Ltd Vs CIT, Delhi (Dated: September 26, 2011) Income Tax Sections 41(1), 147, 148 Whether assessment can be reopened on the ground that there was no discussion, ground or reason in the original assessment order as to why addition of disallowable amount was not made inspite of the failure of the assessee to furnish details in respect of such amount Whether audit objection on the point of fact can be a valid ground for reopening of assessment TIOL-627-HC-P&H-IT M/s V M Spinning Mills Vs CIT, Ludhiana (Dated: September 22, 2011) Income Tax - Section 69 - Whether when there are certain unaccounted sales bills, additions on account of extrapolated sales should be restricted to the bills found - Whether the ITAT is legally justified in directing the addition of Rs.20 lacs on account of unexplained investment made towards working capital TIOL-626-HC-AHM-IT CIT Vs Saiyed Paper Mills Ltd (Dated: September 6, 2011)

12 Income Tax - Section 69 - Whether the unaccounted investment in the purchase of raw material can be excluded from the income on the ground that the same had been incorporated in the stock and sale of the finished goods.