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]

P&H High Court held that where loan taken subsequent to the purchase of the property cannot be said that the same was utilized for acquiring the property. In such circumstances, the Assessing Officer, the CIT(A) and the Tribunal were justified in declining the benefit of Section 24(b) of the Act. Equally, once it is held that the assessee had not borrowed any capital for the purchase of the property, the assessee was not entitled to any deduction under Section 80C(1) read with 80C(2)(xviii) of the Act.- Vijay Aggarwal 27-08-2015[P&H] [2016] 65 taxmann.com 16 (Punjab & Haryana)[Para 9]

P& H HC affirmed finding of ITAT that Invitation as placed in paper book is from son and daughter in law of the assessee. The A.O. has made whole of the addition in the hands of the assessee which is not justified. - Vijay Aggarwal 27-08-2015[P&H] [2016] 65 taxmann.com 16 (Punjab & Haryana)[Para 11]

Addition of Rs. 2,22,500/- on account of 89 liquor bottles. Punjab and Haryana High Court affirmed the finding of Tribunal that since the assessee was staying in a joint family consisting of his son and daughter-in-law and all the bottles cannot be said to have been purchased in one year and the existence of so many bottles can only point out to the fact that these must have been gathered over a period of time and, therefore, an addition of Rs. 1 lac would meet the ends of justice. –Vijay Aggarwal 27-08-2015[P&H] [2016] 65 taxmann.com 16 (Punjab & Haryana)[Para 13]

Delhi High Court in Tupperware India (P) Ltd [2016] 65 taxmann.com 17 (Delhi)[10-08-2015] held that in absence of any tangible material available with Assessing Officer to form requisite belief regarding escapement of income, reassessment of return u/s 143(1) can not be done . It followed Orient Craft Ltd. [2013] 354 ITR 536 (Del) which pronounced that Rajesh Jhaveri Stock Brokers (P.) Ltd. [2007] 291 ITR 500 (SC) does not give a carte blanche to the Assessing Officer to disturb the finality of the intimation under section 143(1) and reopening in absence of new material is bad in law. In present case, AO after having processed the return u/s 143(1) took note of audit report which stated that since no tax deducted on management fee, expesnse is not allowable u/s 40(a)(ia). This fact earlier went unnoticed in processing of return. Comments: Delhi High Court has however not taken note of another Supreme Court Judgement in Zuari Estate on 17-04-2015, which has stated that since as per Rajesh Jhaveri (supra) intimation is not assessment, hence no opinion is formed by accepting return u/s 143(1) and there fore reopening in the absence of new material does not entail change of opinion and hence reopening is valid.

Punjab and Haryana High Court in Himalaya Construction (P.) Ltd SEPTEMBER 3, 2015 [2015] 64 taxmann.com 373 (Punjab & Haryana) held that order passed without considering the overall material on record including the reply to the show-cause notice submitted by the petitioner and without detailed reasons on the issues regarding the jurisdiction of the adjudicating authority is against the principles of natural justice and there fore can be set aside in writ jurisdiction despite alternate appeal remedy

Allahabad High Court in U. P. Rajkiya Nirman Nigam Ltd on 04-07-2013 had held that where books of account are not closed and not signed by Board of Directors and not adopted by shareholders as per Companies Act, it is legally permissible to make adjustments before they are finally adopted , therefore, where accounts of assessee were open and subject to correction by auditors, bad debts could be written off even after closure of accounting period, as there is neither any condition nor any provision under section 36(1)(vii), that writing off of bad debt should be done in relevant previous year, i.e., before end of financial year. Supreme Court has admitted SLP of the revenue on this issue on 23-11-2015

Revision proceedings by CIT on the issue of purchase of new house partly from owned funds and partly from housing loan quashed by ITAT Hyd in Smt. Sumathi Gedupudi [2015] 64 taxmann.com 382 (Hyderabad - Trib.) holding that money has no colour and it is sufficient if requisite amount is invested in new house irresepective of whether it comes from direct sale proceeds or any other source including borrowed funds. ITAT further held that the issue of granting deduction/exemption under S.54F on the borrowed money is a debatable issue and revision proceedings can not be under taken where two views are possible

Pan Correction in TDS return beyond 4 characters comprising two alpha and two numeric characters is not currently allowed by CPC. Invalid PAN is treated as no PAN and demand of TDS u/s 206AA @ 20% is raised against assessee deductors invariably by CPC. Such conduct of CPC is against the natural justice because this harsh processing is not only affecting the deductor but also deductee as a deductee is not being allowed full credit on revision of returns. However, Held by ITAT Ahemdabad in ONGC Ltd 65taxmann.com 2 [23-11-2015] that as per scheme of TDS correction there is no such restriction imposed and any correction can be made by way of deleting the entry, adding of a deductee, change in details mentioned about the deductee including his PAN, adding of TDS challans etc. meaning thereby that deductor can rectify any kind of mistake which has been inadvertently made by it at the time of filing original return and also this correction statement can also be filed for multiple times. Further ITAT held that assessee be allowed opportunity to provide relevant details of deductees as envisaged under proviso to Section 201(1A) i.e. proof of furnishing of return under section 139 of the Act, proof of taking into account such sum for computing income in such return of income of the deductee, proof of tax paid by the deductee and certificate from the Chartered Accountant to this effect that the sum on which deductor was required to deduct TDS has duly been considered in the books of account for computing income of the deductee

Comprehensive Analysis of New Requirements of furnishing PAN and AIR Information w.e.f 01-01-2016

CBDT vide Notification dated 30-12-2015 has amended Rules for PAN and AIR Information. While the press release dated 15-12-2015, broadly discussed the likely changes in PAN requirements, the notification contains lot many creases required to ironed out as under:

Decades long Controversy over defining “Month “ whether Calender Month or Lunar Month

The word “month” has been mentioned in the Income tax law in number of provisions. However the term has not been defined in the Income tax law. Interpretation of the term poses number of issues especially in the interest calculation. However to understand the controversy around it, we shall have to start the journey from genesis as under:

No remand can be allowed by ITAT to improve upon the case of revenue Laxman Dass Makjija Agra Bench TM 313 ITR 123 AT; Amina ITAT Del TM 73 ITD 125; In SMC Share Brokers 109 TTJ 700 affirmed by DHC 288 ITR 345 Neema Sayal CHD ITAT 70 ITD 62; All ITAT TM 50 ITD 1;ZUARI LEASING ITAT TM 112 ITD 205

Decision of Co-ordinate Bench when no contrary decision of Bench itself is binding on ITAT Bench hearing the cases ITA 357/ASR/2010 ACIT Vs. S.S Embroiders.

On Embroidery machinery, 50% depreciation is allowable ITA 36837/2011/ASR dated 4-6-12 in Amit Emb.

Penalty for not quoting PAN in F.16A upheld by ITAT Amritsar ITA/ASR/2012 DATED 17-07-2012.

Punjab & Haryana High Court in Sudhir Nagpal and Bros. ITA 463/2009 explained that if individual co owners join their resources and acquire property in name of AOP, only then it could be assessed in hands of AOP.Mere accruing of income to more than one person shall not constitute AOP.

VDIS Cases on Sale of Jewellery for assesses : -Manoj Kumar Aggarwal (ITAT Spcl. Bench) on 25.07.08 ITA 404/2003 -Tejinder Singh HUF ITA 163/ASR/2003,However remanded by P&HHC on 08.02.2011 in 292 CTR352 to Special Bench for hearing on 04-04-11 -Kiran Deepak Kukreja 190 Taxmann 393(BOM HC) -Uttam Chand Jain 182 Taxmann 243(BOM HC) -Jagdish Mitter TA 268/2002 -Mohan Lal Aggarwal All HC ITA 136/2010 -Yogesh Chand Sharma ITA 131/Agra/2011 -Sanjay Mahipal ITA 452/DEC/2009 Note Transaction of Rishi Grover Prop Vishnu Jeweller held genuine by ITAT Amritsar. ITA 198 TO 202/ASR/2006 26.06.09. MA 55 TO 59/ASR/2010 of department dismissed by ITAT on 26.06.2012.

Capital gain on agriculture land with in 8 km from area not notified, not chargeable to taxable. Madhu Kumar N. HUF 78 DTR 391 (Kar HC)

Educational Institution providing advance to two organizations publishing magazine. Held that advance is incidental and ancillary to main objects. AP High Court quoted SC in Yogiraj Charity Trust 103 ITR 777 that if primary or dominant purpose is charitable , another object which may not be charitable but is incidental to primary object, would not prevent trust from being a valid trust Vijay Vani Education Trust (AP HC) 349 ITR 230

Assessee society providing citizen services to common people. Charging huge fees in addition to charges levied by State Government . Activities are not charitable. Sukhmani Society for Citizen Services (2012) 139 ITD 307 (ASR Trib.)