Supreme Court has affirmed the decision of Allhabad High Court in Society for The Promotion of Education Adventure Sports on 16-02-2016 allowing deemed registration of trust after six months where registration not granted in six months. Earlier Allahabad High Court full bench in Muzafarnagar Development Authority on 05-02-2015 had reversed division bench decision in Society for The Promotion of Education Adventure Sports which now stands restored back . Earlier CBDT vide Instruction dated 06-11-2015 had also directed to follow the time limit of six months strictly.

Changes made in service tax relating to service by Government to business entity : As per section 66D on negative list of service while service provided by government and local authority are generally not taxable, support services services provided by Government to business entity have been kept in taxable category. Further in respect of support services to business entity , tax is payable on reverse charge by business entity and not government except for renting of immovable property. It included services like advertisement, construction, works contract, security and other infrastructural, administrative, operational,logistic, marketing services. However Clause 109 of Finance Act 2015 increased the ambit of taxable service from support service to any service provided by government to business entity from date to be notified later. Now by NN 6/2016 dtd 18-02-2016, the date has been notified as 01-04-2016. Furtherby NN 7/2016 dated 18-02-2016, exemption has been provided for service to business entity with a turnover up to ten lacs in preceding year.

Exports to Nepal' would be treated at par with other exports from 1-3-2012 and would not form part of turnover limit of Rs. 400 lakhs or Rs. 150 lakhs for SSI-exemption purposes accordingly, words 'and Nepal' in Explanation (G) to SSI Notification No. 8/2003-CE to treat exports to Nepal as clearance for home consumption, were struck down-Ketan Pottery Works [2016] 66 taxmann.com 259 (Gujarat)

in Swadeshi Polytex Ltd. (44) ELT 794 (SC) it has been held by the Apex Court that any unintended byproduct during the course of manufacturing of a particular goods could not be said to be an intended one

Assessee took credit of CVD/Special CVD paid on imported materials based on 'endorsed bill of entry' - Department denied credit on ground that endorsed bill of entry is not an eligible document under rule 9(1) - Assessee argued that bill of entry (even if endorsed) continues to be an eligible document under rule 9(1)(c) - HELD : There is no dispute about receipt of material and payment of duty thereon - Hence, credit taken based on endorsed bill of entry is valid, as endorsed bill of entry is also a valid document for availing credit- Suyash Chemicals [2016] 66 taxmann.com 241 (Mumbai - CESTAT)

Contribution received by assessee-trust towards corpus fund even if misused could not be treated as income for purpose of levying tax-Sri Durga Nimishamba Trust [2012] 18 taxmann.com 173 (Kar.)

Where entire cost of property (both land and building) was taken by the assesssee as building only and depreciation was claimed there on. On Sale of the property AO took 1/6 th of the consideration towards building and balance towards land. AO reduced sale allo cated towards building from block and took cost of land at NIL value. Hence entire sale consideration allocated towards land was taken as capital gain. CIT A allocated WDV of property in the same ratio as sale consideration and applied cost of indexation on such deemed value of land. Held by ITAT that stand taken by CIT A is reasoned one and has rightly apportioned the WDV between land and building. [Para 22 Construction Engineers pronounced by ITAT Asr on 18-02-2016]

In Construction Engineers pronounced by ITAT Asr on 19-02-2016, delay of 168 days condoned by ITAT where order of CITA was misplaced by one of the employees of the assessee

ITAT Delhi Bench in the case of Maharashtra Seamless Ltd., held that where in the case of mixed funds, it is not possible to ascertain as to whether investment in tax free bonds is from borrowed funds on assessee’s own funds no disallowance was warranted.

ITAT Delhi in the case of Dy. CIT vs. Jindal Photo Ltd. The burden is on the Assessing Officer to establish nexus of expenses incurred with the earning of exempt income before making any disallowance u/s 14A of the Act.

Income Tax on security refund of company which has already been wound up, received and encashed by Managing Director

Mere knowledge of a notice is not equivalent to proper service under the Act. B. Johar Forest Works vs. CIT [1977] 107 ITR 409 (J&K)

Concept of AIR Information now introduced for Excise and Service tax also. AIR Information to be filed by RBI to CBEC in respect of foreign remittances of entities for receipt of services whose aggregate remittances during financial year exceed Rs. 50 lacs. Also in respect of identified electricity consumers and intimated by 30th June of next year, who are manufacturers, using an induction furnace or rolling mill and whose aggregate clearances during financial year exceed Rs. 150 lacs , state electricity boards and RBI shall file AIR Information till 31st December of subsequent year –Notification 04/2016 dated 15-02-2016

Vide Instruction No. 2/2016, dated 15-02-2016 CBDT has directed officers to pass rectification order in writing being mandatory requirement u/s 154(4) and be duly served on the assessee and not merely make rectification on AST system. Vide Instruction No. 1/2016 dated 15-02-2016, supervisory officers have been instructed to monitor adherence of time limit of six months u/s 154(8) and initiate suitable administrative action where time limit of six months is not adhered.

Auditors’ Qualifications: Whether a death Knell for assessee

What is apparent is not always real. To reach out to the real story, one has to undertake the scavenging exercise.  This daunting  task undertaken by ITAT Amritsar in a recent case  pronounced on 05-02-2016 [ITA 486/ASR/2013] to resolve the mayhem  when survey documents along with auditors qualifications had apparently almost  maimed the assessee.

Vide Instruction dated 10-02-2016, it has been clarified by the DGIT Systems that earlier while notices to non filers were being sent on their PAN addresses, thence forth notices shall be sent on addresses provide in last filed return and AIR Return

Cross objection before ITAT may be filed on the issues decided against the assessee or to support the order passed by CIT A. Where Cross objection is in support of CIT A order, it shall stand dismissed along with revenue’s appeal due to low tax effect circular because it has no independent existence. However if cross objection is filed against some part of the order of CITA, it can not be dismissed along with dismissal of appeal of revenue due to low tax effect circular. Contention that appeal stands dismissed in limine is illogical in such situation. Ajay Kalia[2016] 66 taxmann.com 99 (Delhi - Trib.) JANUARY 7, 2016

There can be one possibility when the cross objection is filed by the other side in support of the order passed by the CIT(A) and the other possibility can be of filing CO against the issues decided against it in the impugned order. There can be still one more possibility when the other side, apart from supporting the impugned order appealed against, may also assail certain other issues decided against it. This divulges that the CO can be filed by the other side, on receipt of notice of appeal having been filed by the appealing party, on any issue de hors the issued raised by the appealing party.

Scope of AO to reopen an assessment on the basis of intimation u/s 143(1) is much wider that scope of reopening on the basis of 143(3) because no opinion is formed by accepting return u/s 143(1) without scrutiny. This is in sum and substance held by the Supreme Court in the case Rajesh Jhaveri Stock Brokers P. Ltd. And Zuari Estate Development and Investment Company . However, even in the case of assessment previously framed without scrutiny which is sought to be reopened by issuance of notice under section 148 of the Act, the principle requirement that the Assessing Officer has reason to believe that the income chargeable to tax had escaped assessment would still survive. Of course, this formation of belief by the Assessing Officer must be prima facie and at the stage when the Court is testing validity of such a notice; it would not be necessary for the Assessing Officer to conclusively establish that the income chargeable to tax had escaped assessment. [Para 7] Prakriya Pharmacem [2016] 66 taxmann.com 149 (Gujarat) JANUARY 18, 2016

In the reasons provided it is stated that the assessee has transferred shares during year under consideration whose market value on the date of transfer was Rs. 7.63 crores (rounded off). This transfer had taken place in favour of sister concern without consideration under transfer deed dated 26.02.2010. In view of such facts, the Assessing Officer has reason to believe that the income chargeable to tax in excess of Rs.1,00,000/- had escaped assessment. Held that reasons themselves record merely the transaction and nothing more. There is no live link between the first portion of the reasons recorded, namely, by merely duplicating the recording of transaction of transfer of sizable number of shares having considerable market value without consideration and second portion of the reasons where he concluded that the income chargeable to tax had escaped assessment. Hence reopening u/s 148 can not be made. [Para 9 and 10 of the Judgement] Comments: This judgement can be helpful where cases are reopened u/s 148 merely on the basis of AIR information Prakriya Pharmacem [2016] 66 taxmann.com 149 (Gujarat) JANUARY 18, 2016

On latest version of S. 263, held by Karnatka High Court in Saravana Developers ITA 68/2014 dtd 21-01-2016 that explanation to section 263 inserted by Finance Act 2015 authorizing exercise of powers u/s 263 where in the opinion of CIT the order is passed without making inquiries or verification which should have been made is applicable only from 01-06-2015 and can not be applied to the cases of inadequate inquiry before 01-06-2015. [Para 8 and 22 of the Judgement]

Section 70 and section 74 were amended by Finance Act 2002 wef AY 2003-04, to rectify an anamoly where by long term capital loss although subject to lower tax @20% was adjusted against normal tax rate income of short term capital gain of 30%, resulting lower payment of taxes by assesses. Hence by amendment brought by Finance Act 2002, long term capital loss was mandated to be allowed against long term capital gain only. However e losses from transfer of short-term capital assets were mandated to be set off against any capital gains, whether short term or long-term. GSB Capital Markets Ltd. [2016] 65 taxmann.com 178 (Mumbai - Trib.) DECEMBER 16, 2015

SLP granted against order of High Court wherein it was held that since dominant objective of ICAI was to regulate profession of Chartered Accountancy in India, it was a charitable institution and conduction of coaching classes and campus placements for a fee by it could not be held to be business, trade or commerce Institute of Chartered Accountants of India[2016] 65 taxmann.com 63 (SC) MAY 1, 2015

Section 206AA providing to apply 20% tax where PAN not furnished can not be applied on gross Salary payment. For computing income on which deduction to be made, exemption limit and deduction towards savings etc . to be reduced u/s 192 unlike other sections on TDS. Further, tax rate after deducting exemption limit and deductions may be 10% or 30% also in some cases. Hence 20% rate can not be applied in situations where 30% rate is applicable. Further tax can not be collected in cases where tax has been deposited by the employee. Rashtriya Ispat Nigam Ltd. JANUARY 22, 2016 [2016] 65 taxmann.com 292 (Visakhapatnam - Trib.)

Whether Trusts to provide information of previous accumulations older than five years also ?

New Rule 17 Inserted for Trust replacing old rule 17. As per New Rule 17, option form to apply trust income in the year of receipt or subsequent year without accumulating the income to filled in form 9A. Notice of accumulation u/s 11(2) for maximum five years in old Form 10 replaced by new Form 10. Both Form 9A and Form 10 to be filed electronically by Trust before due date u/s 139(1), either through digital signature or electronic verification code compulsorily. Form 10 to be used for 11(2) as well as for 10(21) i.e. research association.  Accumulation by educational institutions and medical institutions u/s 10(23C)(vi) though also limited to five years does not require any notice. It may further be noted that assessee trust is required in Form 9A to supply reasons for non application of income in cases where income derived has also actually been received but not applied. No such connotation is apparent from the provisions of the law. The law simply requires it to be applied next year in cases of actual receipt of income which is neither applied nor accumulated. Further new Form 10 allows one to provide different time limits of income accumulated for different purposes. Further while old Form 10 allowed period of six months from the end of previous year to invest in modes specified in 11(5), new form 10 requires investement/deposit in modes specified in 11(5) by the date of furnishing Form 10. However it may also be noted that as per clause (iia) to proviso to section 13(1)(d) period of one year from the end of previous year in which asset is acquired  is allowed for investment/ deposit in modes specified in 11(5). Further old Form 10 point no.3 required furnishing of accounts to provide information regarding utilization of accumulated funds, no such information required in new Form 10. However new Form10 also requires furnishing of information regarding all previous accumulations. Whether information older than five years also required is not clear ?. If so, it might prove a very onerous obligation cast especially on old trusts. – Notification dated 14-01-2016

Applicability of surcharge and cess to rates under DTAA

1.       Education Cess as per Finance Act 2004 is additional surcharge. Hence there is no difference between cess and surcharge

2.       Where DTAA specifically provides that taxes in India shall include surcharge, no separate cess or sucrcharge to be added to DTAA Rate like in case of UK.

3.       If provisions of DTAA are silent about cess and sucrcharge, still cess  and surcahrges not to be imposed over DTAA rates . Held by Cochin Tribunal in M Far Hotels [2013] 58 SOT 261

4.       Uttrakhand High Court decision in Arthusa Offshore Co.169 Taxman 484 [Uttrakhand] applicable to Indo US treaty where in it was provided that rate of tax to foreign companies shall not exceed by 15% from the tax rate applicable to domestic companies at the time of signing treaty. Since tax rate at the time of signing treaty was 50% and surcharge was 15%, AO Computed rate at 50%+15%= 57.5%+15= 72.5% but limited it to maximum rate of 65% under treaty. Assessee however computed rate by adding 15% to rate applicable for relevant assessment year thus computed it at 60%. In this context High Court held that surcharge shall be added to rate of tax.

5.       Sunil V. Motiani v. ITO (International Taxation) [2013] 59 SOT 37/33 taxmann.com 252 (Mum. - Trib. And Parke Davis & Co. LLC v. Asstt CIT [2014] 162 SOT 282/41 taxmann.com 193 (Mum. - Trib.) have also decided the issue in favor of assessee after considering Uttrakhand High Court

6.       As per DIC Asia Pacific Pte Ltd v. Asstt. DIT (International Taxation)[2012] 52 SOT 447/22 taxmann.com 310. Also surcharge and cess not to be added to DTAA rate

BOC Group Ltd[2015] 64 taxmann.com 386 (Kolkata - Trib.) NOVEMBER  30, 2015

Section 14A: Consolidating latest Judicial Developments

Ever since the advent of section 14A in the statute, it has evoked squall of controversy. While the purpose of the section was to compute taxable income by whisking away the expenses attributable to exempt income, the tax department always tried to use it for fetching some more fortunes. In this article attempt has been made to look into real objective of statutory provisions through latest judicial pronouncements.

The Tribunal held that capital gains from transfer of asset by Holding Company to its Wholly Owned Subsidiary which is exempt from tax under section 47(iv) of the Act is not ‘income’ as per section 2(24)(vi) of the Act and therefore cannot be included in computation of book profit for MAT purposes. Shivalik Venture Pvt Ltd v DCIT – 60 taxmann.com 314 (Mumbai – Trib)

The Tribunal held that surplus arising out of issue and subsequent repurchase and extinguishment of debentures at a lower price would not be taxable under section 41(1) of the Act as it was not on account of trading liability and also that it could not be considered as income under section 2(24) of the Act. Reliance Industries Ltd v ACIT – (2015) 45 CCH 0055 Mum Trib.

The Court held that Additional Finance Charges collected by the assessee on borrowers default in payment of EMIs was to be taxed on receipt basis and not accrual basis. It held that the test of real income is the chance or probability of realization and when there was uncertainty in the recovery of EMIs the recovery of the additional finance charge which was an additional burden was equally uncertain and to be taxed on receipt basis. CIT v Shriram Investments Ltd [Tax Case (Appeal) Nos 1222 & 1225 to 1228 of 2007] – TS-538-HC-2015 (MAD)

The Tribunal held that where the assessee was an ‘ESOP Trust’ created by settler-company for implementing its ESOP scheme the assessee was merely acting as ‘Special Purpose Vehicle’. Shares held by the assessee were in fiduciary capacity and assessee did not have absolute rights over those, so these shares could not be categorised as business assets. Thus, gain arising to assessee on transfer of shares to employees of settlor-company was to be treated as capital gain and not as business profits Mahindra & Mahindra Employees Stock Option Trust v Add CIT – [2015] 62 taxmann.com 390 (Mum – Trib)

The Apex Court held that ponds specially designed for rearing of prawns were to be treated as tools of the aqua culture business of the assessee and that depreciation was admissible on the ponds at the rate applicable to plant and machinery. ACIT v Victory Aqua Farm Ltd – (2015) 61 taxmann.com 166 (SC)

The Tribunal held that discount under the ESOP scheme was in the nature of employees cost and therefore deductible during the vesting period with respect to the market price of the options at the time of exercise and therefore allowable as deduction in computing profits from business. ACIT v People Interactive India Pvt LTd – (2015) 45 CCH 0136 Mum Trib

The Court held that once amount realized by assessee by sale of building, plant and machinery was treated as income arising out of profits and gains from business by virtue of sub-section (2) of section 41 notwithstanding fact that assessee was not carrying on any business during relevant assessment year, provision contained in sub-section (2) of section 32 would become applicable and, consequently, set-off had to be given for unabsorbed depreciation allowances of previous year brought forward in terms of said provision. Karnataka Instrade Corporation v ACIT – [2015] 62 taxmann.com 239 (Kar)

The Tribunal held that Ice cream and Mawa fall in the genus of dairy / milk products and thus were covered by the nature of dairy business carried on by the assessee ACIT v Gravis Foods Pvt Ltd – (2015) 44 CCH 0560 Mum Trib

The Court held that since the object in the Memorandum permitted the assessee to carry on the business of letting out property and since 85 percent of the assessee’s income was derived from rent and lease rentals, the income constituted business income of the appellant and therefore compensation paid by the assessee to obtain possession from the tenant for the purpose of earning a higher rental income was to be allowed as a deduction as it was a business necessity. Shyam Burlap Company Ltd v CIT – (2015) 61 taxmann.com 121 (Calcutta

The Court held that where the assessee had taken a loan and advanced part of the loan to another company, the interest paid on the loan taken was in the nature of expenditure wholly and exclusively laid out for the purpose of earning interest income and was to be netted against income from other source as per section 57(iii) of the Act. Vodafone South Limited v CIT – (2015) 94 CCH 0026 Del HC

The Tribunal held that electricity duty collected and paid was not covered by section 43B of the Act as it was not a primary liability by way of tax, duty, cess or fee more since the assessee did not account for the amount in its profit and loss account. ACIT v Maharasthra State Electricity – (2015) 44 CCH 0513 Mum Trib

The Apex Court held that Sec 54G gave a period of three years to purchase a new machinery or plant etc. hence there was no compulsion on the assessee to purchase machinery, plant etc. within the same AY in which the transfer took place. It further held that advances paid for the purpose of purchase and/or acquisition of assets would amount to utilization of capital gains earned by the assessee. Fibre Boards (P) Ltd. Vs. CIT [CIVIL APPEAL NOS. 5525-5526 OF 2005] – TS-454-SC-2015

The Tribunal granted benefit under section 54F of the Act on the entire amount of investment in new house including the amount paid to the builders for amenities like car parking. It dismissed the revenue’s action of restricting the benefit to the value disclosed in the registered sale deed and held that disclosure of a lower value of property (excluding amount paid for amenities like car parking) for stamp duty was an issue alien to the question of allowing deduction under section 54 of the Act. S Tejraj Ranka v ACIT (ITA No.82/Bang/2014) – TS-512-ITAT-2015 (Bang)

The Tribunal held that the surrender of tenancy right was a “transfer” as defined under the Act and that the consideration received on such transfer was assessable to tax under section 45 of the Act and not under the head ‘Income from Other Sources’. It further allowed deduction under section 48 of the Act for expenses incurred on dismantling factory constructed on lease-hold land while computing capital gains upon surrender of lease hold rights on the ground that it was wholly and exclusively in connection with the transfer irrespective of the fact that the expenses were incurred by a person other than the assessee. Sri Laxmidas Bapudas Darbar v ITO [ITA No 731 / Bang / 2014] – TS-498-ITAT-2015 (Bang)

The Apex Court upheld the order of the High Court wherein it was held that the condition precedent for issuing a notice under section 148 read with section 149(1)(c) of the Act invoking the extended period of limitation of sixteen years is that income which has escaped assessment must have relation to any asset outside India which was not satisfied as the Revenue did not bring anything on record to prove that there was an asset located outside India. ITO and Ors v Deccan Digital Networks Pvt Ltd [SPL No 9577/2015] – TS-510-SC-2015

The Tribunal held that where the assessee surrendered additional income pursuant to search proceedings, which related to sundry creditors, repairs to building, advances and stock which related to business carried on by it, it was to be included in income from business and not deemed income under section 69A of the Act. Dev Raj Hi-Tech Mechines Ltd v DCIT – (2015) 45 CCH 0106 Asr Trib

The Court held that the assessee was entitled to TDS credit without offering corresponding income to tax as per section 199 of the Act read with Rule 37BA since the corresponding income was assesseable in the sister concern’s hand who had not availed of such TDS CIT v Relcom (ITA 26/2015) – TS-618-HC-2015 (Del)

The Tribunal held that lease premium paid by the assessee was capital expenditure to acquire land with substantial right to construct and could not be considered as rent under section 194I and therefore no TDS was deductible. ITO(TDS) v Progressive Civil Engineers Pvt Ltd – (2015) 45 CCH 0137 Mum Trib

The Tribunal held that the provision of roaming services do not require any human intervention and accordingly could not be construed as technical services under section 194J of the Act. Further, 194C of the Act was also not applicable as the said section is applicable only where works contracts are being carried out requiring the presence of manpower which was not the case. Further, it was held that the payment was not covered by section 194I of the Act as the assessee was a mere facilitator between its subscriber and the service provider providing the equipment and never used the equipment involved in providing roaming facility. Vodafone East Ltd v ACIT – (2015) 61 taxmann.com 263 (Kolkata – Trib)

The assessee, engaged in the business of purchase and sale of shares, earned dividend income of Rs. 43.48 lakhs which it offered to tax as “income from other sources”. The assessee set-off the dividend income against its brought forward business loss. The AO & CIT (A) rejected the set-off on the ground that u/s 72 business losses can only be set-off against business income and not “income from other sources”. Held that U/s 72(1)(i), the brought forward business loss can be set-off against “the profits and gains of any business or profession carried on” by the assessee. S. 72 (1)(i) does not use the word “assessable under the ‘head‘ profits & gains of business”. So, the question is whether the securities formed part of the trading assets of the business and the income there from was income from the business. The answer to this question has to be decided on commercial principles and not on the basis of the classification of ‘heads of income’ in s. 14. Though for the purpose of computation of the income, dividends are assessable under the head “Other Sources”, it does not cease to be part of the income from business if the securities are part of the trading assets. Accordingly, the assessee is eligible for set-off as claimed (Cocanada Radhaswmi Bank 57 ITR 306 (SC) & New India Investment 130 ITR 778 (Cal) followed). Gagan Trading Co (ITAT Mumbai) [2011]

The assessee received an amount of Rs.43 lakhs being remission of liability of ING Vysya Bank Ltd. The assessee has prepared its P&L A/c by including this amount as income. The assessee submitted before the AO that this remission of the liability was on account of principal amount of loan and therefore, the same is not in the nature of income which can be considered as part of the book profits u/s 115JB of the Act. Held that Even a non-taxable capital receipt credited to the P&L A/c cannot be excluded while computing the book profits. The fact that the notes to the A/cs state that the receipt is on capital account is irrelevant. B & B Infotech Ltd vs. ITO (ITAT Bangalore) 07-10-2015

Interest on TDS refund, interest from lessees, interest on FDRs and Tender fees are all “derived” from the undertaking and are eligible for deduction. If items of income are not eligible, it should be netted off against expenditure and only balance can be disallowed ITO vs. Hiranandani Builders (ITAT Mumbai) [28-10-2015]

Correctness of law laid down by Bombay High Court in Ace Builder 281 ITR 210 that deduction u/s 54EC is available to short-term capital gains computed u/s 50 doubted by Tribunal in Legal Heir of Shri Durgaprasad Agnihotri (ITAT Mumbai)

The term “before” specified date in section 44AB means “on or before” the specified date. Therefore, though audit report is signed on 30th September 2008 and the requirement of law is to be construed as tax audit report required to be obtained on or before 30th September 2008. Hence, the assessee has obtained tax audit report in time and there is no default u/s 271B. In Prem Chand Nathmal Kothari vs. Kishanlal Bachharaj Vyas & Ors dated 5th April 1975 reported in AIR 1976 Bombay 82 the Bombay High Court, relying on the Chambers Dictionary, held that word ‘before’ means ‘previous to the expiration of’. Therefore, before 30th September, 2008 means before the end of 30th September 2008 Chopra Properties vs. ACIT (ITAT Delhi)[20-11-15]