TAX FREE BONDS DATED 6-7-2015

NOTIFICATION NO. 59/2015 [F.NO.178/27/2015-(ITA-I) DATED 6-7-2015
Following Institutions authorized to issue tax free bonds u/s 10(15)(iv)(h)
1. NHAI
2. IRFC
3. HUDCO
4. IREDA
5. PFC
6. REC
7. NTPC
The tenure of the bonds shall be for ten or fifteen or twenty years.
It shall be mandatory for the subscribers to furnish their Permanent Account Number to the issuer of the bonds.

Standard Operating Procedure (SOP) for making application for claim of tax exemption u/s 11(1)(c) of the Income-tax Act, in respect of remittance of money/relief articles by Indian NGOs/Charitable Organisations for earthquake hit people in Nepal

Circular dtd 08-07-2015

The applicant organization seeking income tax exemption u/s 11(1)(c) should apply to Member(IT), CBDT, New Delhi. The application must contain the information as per ANNEXURE-I as well as other relevant information discussed at Paras5 to 9 below, as applicable. It must be ensured that complete information is provided and copies of required documents are enclosed.

Merely because the assessee has challenged the order of the Tribunal in an Appeal under section 260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the revenue/Assessing Officer. Such a power enables the Tribunal to rectify any mistake apparent from the record and make amendments

BOON INDUSTRIES Jul 8, 2015 (2015) 44 CCH 0305 MumTrib
R.W Promotion Pvt Ltd (MA No.194/Mum/2013) followed

Non-availability of ads of medical relief camps provided by trust won't lead to denial of its registration

Lal Bahadur Shastri Bahuudeshya International Society [2015] 59 taxmann.com 39 (Delhi - Trib.) MARCH  21, 2014 

Section 2(15), read with section 12A, of the Income-tax Act, 1961 - Charitable trust (Medical relief) - Assessee-society, engaged in organising free medical camps, claimed registration under section 12A - Commissioner denied registration inter alia on ground that there was no evidence of holding camps by way of advertising, publicity or otherwise; and register maintained by assessee for that purpose did not have a single complete address of persons getting treatment through such camps - Whether there is no bar under law to organize any medical relief camp without issue of advertisement or publicity and further since register maintained by assessee had necessary details under three broad heads viz. treatment, attendant's name and subscription, registration could not be denied for lack of complete address - Held, yes - Whether moreover focus of investigation at stage of grant of registration is chiefly on objects of trust or institution and since in instant case objects focused investigation did not yield any result jeopardizing charitable character of assessee, refusal of grant of registration to assessee was unjustified - Held, yes [Paras 4 and 5][In favour of assessee]

TDS on C& F agents of Transporters: Implications of 194C(6)

Section 194C(6) has been amended with effect from 01-06-2015 to cover in its net large transporters owning more than ten trucks. To avail exemption from TDS web, it requires furnishing of PAN and declaration by contractor engaged in the business of plying, hiring or leasing of goods carriages provided the contractor owns ten or lesser trucks at any time during the year. In this article an attempt has been made to find an answer to following questions:

1.    Who will be the contractor for the purposes of section 194C(6)?

2.    Whether payment by C&F agent to truck owners will be subject to TDS u/s 194C?

3.    Whether C&F agent will be covered by presumptive taxation u/s 44AE?

4.    Whether truck owner/operator will be covered by presumptive taxation u/s section 44AE?

5.    Who will furnish its declaration and PAN for availing exemption u/s 194C(6) and whether C&F agent or truck owner is exigible to TDS ?

Where entire purchases were made by bill and sales tax was paid thereupon and payments to party were made by account payee cheques, addition on account of bogus purchases was not justified

Selvel Advertising (P.) Ltd.[2015] 58 taxmann.com 196 (Kolkata - Trib.)JANUARY  1, 2015 

Contribution for the construction and development of roads between various sugarcane-producing centres and the sugar factories of the assessee. The roads remained the property of the Government. Held revenue expenditure

Lakshmiji Sugar Mills Co. (P.) Ltd. v.CIT [1971] 82 ITR 376 (SC), the assessee-company was carrying on the business of manufacture and sale of sugar. It paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between various sugarcane-producing centres and the sugar factories of the assessee. The roads remained the property of the Government. This Court held that the expenditure was not of a capital nature and had to be allowed as an admissible deduction in computing the profits of the assessee’s business. The expenditure was incurred for the purpose of facilitating the running of the assessee’s motor vehicles and other means employed for transportation of sugarcane to its factories.

Expenditure on contribution for construction of tenements for asessee's workers which remain property of housing board is revenue expenditure

In the case of CIT v. Bombay Dyeing & Mfg. Co. Ltd. [1996] 219 ITR 521 / 85 Taxman 396 (SC), the company contributed to the State Housing Board certain amounts for construction of tenements for its workers. The tenements remained the property of the Housing Board. It was held that the expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constituted legitimate business expenditure. As the assessee-company acquired no ownership rights in the tenements, this Court said that the expenditure was incurred merely with a view to carry on the business of the company more efficiently by having a contented labour force

PipeLines and Transmission lines set up to provide water and electricity in lieu of exemption from municipal taxes for 15 years is revenue expenditure

 In the case of CIT v. Associated Cement Cos. Ltd. [1988] 172 ITR 257 /38 Taxman 110A (SC), the respondent-company entered into an agreement to supply water to the municipality and provide water pipelines as also to supply electricity for street lighting and put up a transmission line for that purpose. The assessee also agreed to concrete the main road from the factory to the railway station. The amounts expended for these purposes were held to be revenue expenditure since the installations and accessories were the assets of the municipality and not of the assessee. The expenditure, therefore, did not result in creating any capital asset for the company. The advantage secured by the respondent was immunity from liability to pay municipal rates and taxes for a period of 15 years. This Court said that had these liabilities been paid, the payments would have been on revenue account. Therefore, the advantage secured was in the filed of revenue and not capital.

Section 37(1) of the Income-tax Act, 1961 - Business expenditure - Allowability of - Assessment year 1968-69 - Assessee obtained premises on lease for 39 years - In terms of lease agreement, assessee demolished existing construction and constructed new building to suit its business at its own expenses - In any circumstances assessee would not be entitled for any compensation on account of putting up new construction and it should be treated as tenant subject to payment of rent lower than rent prevailing - Assessee claimed said construction expenditure as revenue expenditure - Assessing Officer rejected its claim and treated said expenditure as capital expenditure - Whether since asset created by assessee by spending amounts did not belong to assessee but assessee got only business advantage of using modern premises at a low rent, thus, saving considerable revenue expenditure for next 39 years, said expenditure should be treated as revenue expenditure - Held, yes

Madras Auto Service (P.) Ltd[1998] 99 TAXMAN 575 (SC)AUGUST 12, 1998

Assessee-company claimed depreciation on LED video display boards - Assessing Officer disallowed said claim - Commissioner (Appeals) held that LED video display boards were purely temporary structures and therefore, assessee was entitled to 100 per cent depreciation - Whether since structure could not be re-used and said structures were put on land not belonging to assessee, order of Commissioner (Appeals) could not be interfered with - Held, yes

Selvel Advertising (P.) Ltd[2015] 58 taxmann.com 196 (Kolkata - Trib.)JANUARY  1, 2015 CIT v. Madras Auto Service (P.) Ltd. [1998] 233 ITR 468/99 Taxman 575 (SC) (para 15) followed

Chit dividend paid by of chit fund company to its members is not interest falling under section 2(28A) and, consequently, no deduction of TDS under section 194A is required to be made

Avenue Super Chits (P.) Ltd[2015] 58 taxmann.com 368 (Karnataka)JANUARY  16, 2015 CIT v. Sahib Chits (Delhi) (P.) Ltd. [2010] 328 ITR 342/[2009] 185 Taxman 34 (Delhi). (para 7)followed.

Uniform allowance paid to employees isn’t exempt if no dress code has been specified for employees

Facets Polishing Works (P.) Ltd.[2015] 58 taxmann.com 373 (Ahmedabad - Trib.)JUNE  25, 2015 
No exemption under section 10(14) shall be granted in respect of uniform allowance paid to employees if there is no dress code and the employees are free to wear any dress. ITAT has directed assessee-employer to include such allowance in salary of the employees for the purpose of deduction of tax under section 192

Where assessee had violated provisions of section 80-IB(10)(C) in respect of two units of housing project, denial of deduction under section 80-IB would be limited only to said two units and for balance units assessee would be entitled to deduction

Paras Builders[2015] 58 taxmann.com 286 (Pune - Trib.)MARCH  31, 2015 
Assessing Officer disallowed deduction on ground that assessee had violated provisions of section 80-IB(10)(c) by amalgamating two row houses, covered area of which was more than 1500 sq. ft. which is condition stipulated in section 80-IB(10)(c) - Whether merely because assessee had violated provisions of section 80-IB(10)(c) in respect of two units, deduction under section 80-IB(10) could not be denied in entirety and assessee was entitled to said deduction in respect of balance units which had been constructed as per conditions laid down in section 80-IB(10)(c) - Held, yes [Para 11] [In favour of assessee]

No deduction of employee's contribution to PF if paid before due date of filing return but after due date of PF

South India Corporation Ltd.[2015] 58 taxmann.com 208 (Kerala)MARCH  27, 2015 
Hitech (India) (P.) Ltd. v. Union of India [1997] 227 ITR 446/94 Taxman 454 (AP) (para 4) followed
 two provisions were considered by the Hon'ble Andhra Pradesh High Court in Hitech (India) (P.) Ltd. v. Union of India [1997] 227 ITR 446/94 Taxman 454 in which it was held that a combined reading of clause (va) of Section 36(1) and Section 43B of the Income Tax Act makes it clear that if the assessee (employer) credited any sum received by him from any of his employees on or before the due date, that is, the date by which the assessee (employer) is required to credit the employees' contribution to the employees' account in the relevant fund (including the Provident Fund), he will be entitled to deduct the said amount in computing his business income. But, Section 43B controls the allowability of deduction of payment specified in clauses (a) to (d) thereof and provides certain conditions subject to which alone the deductions may be permissible. Enunciating the point, it was held that deduction would be available only if the remittance to the fund is made within the due date fixed for making such remittance into the fund; in the case in hand, the Provident Fund. So much so, the question referred is to be answered in favour of the Revenue

Cash deposit couldn't be held as unexplained if such amount was surrendered during search and reflected in WT return

Joginder Paul [2015] 58 taxmann.com 289 (Chandigarh - Trib.) JANUARY  12, 2015 

Cost of additions or improvements on habitable house is also eligible for sec. 54F relief

Mrs. Rahana Siraj [2015] 58 taxmann.com 333 (Karnataka) JANUARY  5, 2015 
Property purchased by the assessee was habitable but had lacked certain amenities. The assessee has spent nearly about Rs. 18 lakhs towards removal of mosaic flooring and laying of marble flooring, alteration of the kitchen, putting up compound wall, protecting the property with grill work and attending to other repairs. Section 54F of the Act provides that if the cost of the new asset, which is to be taken into consideration while determining the capital gain, the words used is "cost of new asset" and not "the consideration for acquisition of the new asset". 
                                             In law, it is permissible for an assessee to acquire a vacant site and put up a construction thereon and the cost of the new asset would be cost of land plus (+) cost of construction On the same analogy, even though he purchased a new asset, which is habitable but which requires additions, alterations, modifications and improvements and if money is spent on those aspects, it becomes the cost of the new asset and therefore, he would be entitled to the benefit of deduction in determining the capital gains. 
                              The approach of the authorities that once a habitable asset is acquired, any additions or improvements made on that habitable asset is not eligible for deduction, is contrary to the statutory provisions. The said reasoning is unsustainable. To that extent, the impugned order passed by the Tribunal as well as the Lower authorities require to be set-aside and it is to be held that in arriving at cost of the new asset, Rs. 18 lakhs spent by the assessee for modification, alterations and improvements of the asset acquired is to be taken note of. Thus, the second substantial question of law is answered in favour of the assessee

Arranger fee received by assessee-bank for mobilising deposits from SBI which was remitted to overseas branch/head office was not in nature of fee for technical services but merely commission and was not tax deductible at source

Mashreq Bank psc [2015] 58 taxmann.com 291 (Mumbai - Trib.) MAY  8, 2015 

After Delhi HC Gujarat HC also held that ITAT can extend stay beyond 365 days if delay isn’t due to assessee

Vodafone Essar Gujarat Ltd.[2015] 58 taxmann.com 374 (Gujarat) JUNE  12, 2015 

where obligation to deduct tax at source from payment of transportation charges was complied with by agent on different dates for and on behalf of assessee, no disallowance could be made under section 40(a)(ia) on account of reimbursement of such expenses to agent

OM India Trading Co. (P.) Ltd.[2015] 58 taxmann.com 325 (Guwahati - Trib.) 21-01-2015

Long Term Capital Gain and Loss on Shares

     Taxation of shares in recent times has undergone number of changes. Finance Act 2004 sought to exempt long term capital gain on equity shares and equity oriented funds in the hands of all  types of investors including FIIs, institutional investors and other foreign nationals by introducing section 10(38). However this seemingly simple exemption clause with times has unfolded a number of issues . This article is a humble attempt to deal with a few taxation issues pertaining to income as well loss arising from long term capital assets in the form of  equity shares and equity oriented funds

Where Assessing Officer instead of taking approval from Joint Commissioner as per provisions of section 151, obtained approval from Commissioner and issued notice under section 148 said notice was invalid

SPL'S Siddhartha Ltd. [2012] 17 taxmann.com 138 (Delhi) SEPTEMBER 14, 2011

As per proviso to section 151(1) sanction of Commissioner or Chief Commissioner is pre-requisite condition for issuance of notice under section 148 and, therefore, notice issued with sanction of Joint Commissioner would be invalid and such invalidity cannot be cured by resorting to provisions of section 292B

Dhadda Exports [2015] 58 taxmann.com 176 (Rajasthan)

Where renting of properties is main business as per MOA it should be assesses as business income and not income from house property

Chennai Properties and Investment -Supreme Court- 09-04-2015

Appeal can be filed against order of AO for appeal effect

The Haryana State Co-operative Supply & Marketing Federation Ltd Vs. D.C.I.T. (ITAT Chandigarh), ITA no 791/Chad/2013, date of Pronouncement 16.06.2015 

Decisions Relied upon

Andhra Pradesh High Court Bakelite Hylam Ltd. vs. CIT, 37 Taxman 210 
Bombay High Court in case of Caltex Oil Refining ( India) Ltd. Vs. CIT, 73 Taxman 231
Calcutta High Court in Kooka Sidhwa & Co. v. CIT [1964] 54 ITR 54
Punjab High Court in Gopi Lal v. CIT [1967] 65 ITR 477

CIC directs bank to provide information as to under what regulations loan applicants are required to get their project reports certified by CA

Central Information Commission New Delhi vide order dated 19-06-2015 has directed Central Public Information Officer(CPIO),Bank of India to forward to the Appellant a certified copy of the bank regulations / guidelines, which require loan applicants to submit their project reports and project balance sheets certified by a Chartered Accountant. 
In case there are no such specific regulations / guidelines, the CPIO should inform the Appellant accordingly in writing. The CPIO to comply with above directives within fifteen days of the receipt of order, under intimation to the Central Information Commission

INADVERTENT MISTAKES IN ITR

Mumbai seat of the Income Tax Appellate Tribunal `E’ Bench in the case of Sujata Trading Private Limited vs. Income Tax Officer, 8(3)(2), Mumbai [2015] 152 ITD 492 (Mumbai – Trib), the critical and decisive question that

Trust's registration not to be delayed due to delay of revenue in transferring application to concerned CIT

Gauhati Greater Sewa Nidhi Trust [2015] 58 taxmann.com 145 (Guwahati - Trib.)

Where deduction under section 10A was denied on ground that assessee-firm was formed by splitting up of an existing business, but nothing was there on record to suggest that business of assessee-firm was carried on by other entity including partners in individual capacity and subsequently business of said entity was split or there was a reconstruction, it could not be said that assessee had violated any of conditions of clause (ii) or (iii) in section 10A(2)

APS Technologies [2015] 58 taxmann.com 104 (Pune - Trib.)

Section 15C of the Indian Income-tax Act, 1922 [corresponding to section 80J of the Income-tax Act, 1961] - Deductions - Profits & gains of newly established industrial undertakings - Whether assessee was entitled to deduction under section 15C on profits and gains derived from an industrial undertaking established in a building taken on lease which was used previously for other business - Held, yes

Bajaj Tempo Ltd [1992] 62 TAXMAN 480 (SC)

Section 9 of the Income-tax Act, 1961 read with article 5 of Model OECD convention - Income - Deemed to accrue or arise in India (Permanent establishment) - Assessment years 2008-09 to 2012-13 - Assessee-company was established as Liason Office (LO) in India for Tesco, Hongkong - It acted as a communication channel between Tesco, Hongkong and manufacturers in sourcing apparels from India - During assessment proceedings, Assessing Officer opined that activities of LO were not confined to activities related to purchase of goods in India for purpose of exports rather said activities of LO related to supply chain management for Tesco, Hong Kong - Assessing Officer, thus concluded that activities of the LO were not confined in exception provided in Explanation 1(b) to section 9(1)(i) - He accordingly passed assessment order determining assessee's taxable income in India - It was noted that Co-ordinate Bench of Tribunal in assessee's own case relating to earlier assessment years held that there was no evidence on record to suggest that LO had indulged in carrying on commercial activities and that it was in fact, a 'permanent establishment' of Tesco, Hong kong in India - It was thus concluded that Explanation 1(b) to section 9(1)(i) was clearly applicable to assessee's case - Whether following aforesaid order of co-ordinate Bench of Tribunal, impugned addition made by Assessing Officer for assessment years in question was also liable to be deleted - Held, yes [Para 5.3-3] [In favour of assessee]

Tesco International Sourcing Ltd [2015] 58 taxmann.com 133 (Bangalore - Trib.)

Section 10B of the Income-tax Act, 1961 - Export oriented undertaking - Assessment year 2006-07 - Whether proviso to section 10B(1) is directory and not mandatory - Held, yes - Whether, therefore, in case of genuine hardship, relief can be granted to assessee under section 10B even if return is not furnished on or before due date specified under sub-section (1) of section 139 - Held, yes

Dhir Global Industria (P.) Ltd [2011] 43 SOT 640 (Delhi)

Section 80-IC of the Income-tax Act, 1961 - Deductions - Special provisions in respect of certain undertakings or enterprises in certain special category States - Assessment year 2008-09 - Assessee claimed deduction under section 80-IC which was disallowed by Assessing Officer as return of assessee was not filed within time as prescribed under section 139(1) - Assessee had given reasons for delay of 74 days submitting that computer in which accounts were maintained got corrupted due to virus; that back up data were available only for 10 months and entire data for last two months had to be re-entered - Whether there was a reasonable cause for filing return of income belatedly and this was beyond control of assessee - Held, yes - Whether further since assessee was legally entitled to deduction under section 80-IC, his claim could not be disallowed on technical ground that return of income was filed belatedly - Held, yes [In favour of assessee

S. Venkataiah[2012] 22 taxmann.com 2 (Hyd.)

Section 139, read with sections 80AC and 80-IC, of the Income-tax Act, 1961 - Return of income - E-return - Assessment year 2008-09 - Whether filing of return electronically is a directory provision and if return is filed manually on or before due date, such return cannot be ignored - Held, yes - Assessee filed its return manually before due date prescribed under section 139(1) wherein deduction was claimed under section 80-IC - Subsequently, on instruction of CBDT, assessee filed its return electronically - Assessing Officer finding that e-return, was filed beyond prescribed period, held that assessee was not entitled for deduction by virtue of provision contained in section 80AC - Whether in view of aforesaid legal position, Assessing Officer was not justified in ignoring manual return filed by assessee before due date of filing of return - Held, yes - Whether, therefore, impugned order passed by Assessing Officer was to be set aside - Held, yes [Para 13] [In favour of assessee]

Gemini Communication Ltd.[2015] [2013] 29 taxmann.com 13 (Chennai)

Where electronic return not filed before due date and also mannual return not filed before due date and also no plausible explanation provided for non filing of return except that the consultant was not aware about timely filing for deduction under S. 80IC, deduction can not be claimed

Sucram Pharmaceuticals [2015] 58 taxmann.com 138 (Chennai - Trib.)

Where a manual return was furnished before due date while electronic return after due date, provision of section 80-IC so as to claim deduction under section 80-IC was complied with

Sucram Pharmaceuticals [2015] 58 taxmann.com 138 (Chennai - Trib.)

AO not to raise direct demand against an assessee wherein TDS credit mismatch arises due to default of deductor: CBDT

SECTION 199 OF THE INCOME-TAX ACT, 1961 - DEDUCTION OF TAX AT SOURCE - CREDIT FOR TAX DEDUCTED - NON-DEPOSIT OF TAX DEDUCTED AT SOURCE

INSTRUCTION NO.275/29/2014-IT-(B), DATED 1-6-2015

Mumbai ITAT allows set-off of long-term capital loss arising from sale of STT paid equity shares

FOLLOWED Hon'ble Calcutta High Court in the case of Royal Calcutta Turf Club v. CIT (1983) 144 ITR 709 (Cal). In this decision it was submitted that similar issue with regard to the losses on account

Whether once assessee's father claimed that amount in said bank accounts belonged to him, it was for him to establish as to whom he had supplied goods and who had made payments; Tribunal was not justified in shifting burden of proof on revenue to prove transaction in name of assessee

Naval Kumar Chhabra [2015] 57 taxmann.com 306 (Karnataka) NOVEMBER  17, 2014

Assessing Officer allowed rent paid on mixture machine without deduction of tax at source, said view being one of possible view regarding TDS provisions, his order did not suffer from any error requiring revision

Chhitar Singh Shekhawat [2015] 58 taxmann.com 50 (Jodhpur - Trib.)SEPTEMBER  18, 2014 

While adding Long term capital income under section 10(38) for the purpose of MAT calulation u/s 115JB, indexation can not be done

Dharmayug Investments Ltd. [2015] 58 taxmann.com 116 (Mumbai - Trib.) 10-06- 2015 

Whether receipts of outstanding fee of professional work done by assessee, who kept his accounts on cash basis, after close of his profession was not taxable either under head of professional income or under section residuary head – Held, yes

[1966] 61 ITR 428 (SC) SUPREME COURT OF INDIA Nalinikant Ambalal Mody v. S.A.L. Narayan Row, Commissioner of 

Income-tax MAY 4, 196

Gains derived on surrender of tenancy rights would be taxable as capital gains and not as income from other sources

G.C. Shah & Co.[2015] 58 taxmann.com 49 (Gujarat) HIGH COURT OF GUJARAT NOVEMBER  5, 2014 

Disclosure of income-tax returns of a politician on the ground that it is necessary for “purity of elections” and “probity in public life” is not possible as it is not in “public interest”

Shailesh Gandhi vs. CIC & Ajit Pawar (Bombay High Court)June 11, 2015 (Date of pronouncement)

(i) In Girish Ramchandra Deshpande Vs. Central Information Commission & Ors(2013) 1 Supreme Court Cases 212 it was held that that the details disclosed by a person in his Income Tax Returns is personal information which has been exempted from disclosure under clause (j) of Section 8(1) of the said Act, unless involved a larger public and the CPIO and or State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information;

Only payments "in pursuance of a contract" are subject to TDS. Payments made under a legal obligation are not covered

Kapurthala Improvement Trust vs. CIT (ITAT Amritsar)I.T.A. Nos. 40 to 43/Asr/2015  10th day of June 2015

The Proviso to s. 2(15) has no bearing on the grant or denial of registration. The applicability of the proviso has to be evaluated on a year to year basis and it only affects the grant of exemption u/s 11

Kapurthala Improvement Trust vs. CIT (ITAT Amritsar)

Prior to the amendment to s. 200A w.e.f. 01.06.2015, the fee for default in filing TDS statements cannot be recovered from the assessee-deductor

Sibia Healthcare Private Limited vs. DCIT (ITAT Amritsar)June 9, 2015 (Date of pronouncement)Hon’ble 

Kerala High Court, in the case of Narath Mapila LP School Vs Union of India [WP (C) 31498/2013(J)], Hon’ble Karanataka High Court in the case of Adithya Bizor P Solutions Vs Union of India [WP No. 6918-6938/2014(T-IT), Hon’ble Rajasthan High Court in the case of Om Prakash Dhoot Vs Union of India [WP No. 1981 of 2014] and of Hon’ble Bombay High Court in the case of Rashmikant Kundalia Vs Union of India [WP No. 771 of 2014], had earlier granted stay on the demands raised in respect of fees under section 234E

Where the issue of investment in shares has already been considered at the time of registration of trust and found to be not voilating 11(5), no subsequent revocation of registration on this ground can be made

Nimmagadda Foundation [2015] 57 taxmann.com 226 (Hyderabad - Trib.)SEPTEMBER  10, 2014 
In this case investment in shares was converted in forms specified in 11(5) in specified period.

Time Limits for Rectification under Section 154

As per section 154(7) no amendment under this section shall be made after the expiry of four years from the end of the financial year in which the order sought to be amended was passed

As per Section 154(8), Without prejudice to the provisions of sub-section (7), where an application for amendment under this section is made by the assessee or by the deductor on or after the 1st day of June, 2001 to an income-tax authority referred to in sub-section (1), the authority shall pass an order, within a period of six months from the end of the month in which the application is received by it,—

(a) making the amendment; or

(b) refusing to allow the claim

CIRCULAR NO. 14/2001 Dated- 9-11-2001 Issued by CBDT

Clarified that Considering the absence of any specific time-limits regarding disposal of application for rectification under section 154, and with a view to ensure time-bound disposal of rectification applications, the Act has inserted a new sub-section (8) in section 154 to provide that where an application for amendment under this section is made by an assessee on or after 1st June, 2001 to an income-tax authority referred to in the said section, the authority shall pass an order within six months from the end of the month in which the application is received by it, either making the amendment or refusing to allow the claim. The overall time-limit of four years provided in the section for passing any rectification order shall however continue to apply. In other words, the period of six months mentioned in the new sub-section (8) cannot extend, under any circumstances, beyond the overall time-limit of four years from the end of the financial year in which the order sought to be rectified was passed. These amendments will take effect from 1st June, 2001.

Means if 6 months lapse then also the authority concerned can pass order within four years from the end of financial year in which the order sought to be amended. –

The department cannot take any coercive measure or recover any outstanding dues without first disposing of the assessee’s petition. In this regard, reference may be made to a judgement in the case of Sultan Leather Finishers (P) Ltd. vs. ACIT 191 ITR 179 (All.)

If inspite of reminders and persuasion, the A.O. is still not disposing of the rectification petition, the only legal option available to the assessee is to file a writ petition of “Mandamus” for securing judicial enforcement of public duties, performance of which has been wrongfully refused  before the jurisdictional High Court

The Hon’ble Kerala High Court in the case of Smt. Rajamma vs. ITO 152 ITR 657(Ker), where the A.O. was not disposing of the rectification petition u/s. 154, held that an application for relief cannot be kept in cold storage and directed the A.O. to dispose of sec. 154 application within one month from the date of receipt of the order.

However, to avoid the cost, one option available to the assessee is to approach Income-tax Ombudsman by filing a complaint with him for non-disposal of sec. 154 petition by the A.O. as per Income Tax Ombudsman Guidelines, 2006 .

Expeditious Disposal of Rectifications applications- Instructions dtd 05-06-2015

-                Citizen Charter requires disposal with in two months from    the end of month in which applications is made. As Interim action plan of CBDT, all applications received up   to 31-03-2015 were required to be disposed off till 15-05-2015. Feedback report to be sent to Zonal Members till 20-06-2015    under intimation to Member (IT).  Supervisory Authorities to ensure maintenance of rectification registers by AOs as per instructions dated 05-07-2013 [03/2015] For verification and correction of demand Circular No. 08/2015 dated 14-05-2015 to be followed