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Archive: 06 March 2012

Posts in 06 March 2012

Section 54EC Exemption cannot be denied merely because bonds are in joint names

March 6, 2012 7836 Views 2 comments Print

assessee is eligible for the exemption under Section 54EC. I further find that the Mumbai bench, ITAT has held in the case of JCIT v. Smt. Armeda K. Bhaya (2005), 95 ITD 313 (copy filed) that for the purpose of Section 54 of the Act, it is sufficient compliance with the section that the assessee purchased the new flat in the names of himself, his father and mother and that it was not the requirement of the section that the new flat should be in the assessee’s exclusive name. It was held that the main condition of the section was that the sale consideration should be invested in the new house. I respectfully follow the ratio of the above decision. I accordingly confirm his order and dismiss the appeal filed by the revenue with no order as to costs.

S. 54EC Exemption allowed where investment was made after 6 months due to non-availability of bonds

March 6, 2012 1252 Views 0 comment Print

Tribunal held that it was an impossible task for the assessee to comply with the time period laid down u/s 54EC. The delay in purchase due to non-availability of the bonds was held to be a reasonable cause, and the assessee was held to be entitled to exemption u/s 54EC. The Tribunal also noted that in the case of Ram Agarwal 81 ITD 163, on similar facts, it had been held by the Tribunal that the assessee was entitled to claim deduction u/s 54EC. The Tribunal allowed the appeal of the assessee.

Section 50 would apply only to cases where ‘assessee’ had obtained depreciation

March 6, 2012 549 Views 0 comment Print

the assessee had not obtained any depreciation after the asset became an asset of the partnership firm constituted under the deed dated June 16, 1977. In this context reference may usefully be made to the decision of the Calcutta High Court in the case of CIT v. Bhupender Singh Atwal [1983] 140 ITR 928, delivered by Sabyasachi Mukharji J., as he then was, who, speaking for the Bench, held that after an asset has become the property of a new firm the cost of acquisition by the firm is to be taken into account for computing the capital gains, and not the written down value of the asset on the date of dissolution of the old firm. Section 50 would only apply to the cases where the assessee had obtained the depreciation.

Benefit u/s 54EC / 54E available even in case of depericiable asset

March 6, 2012 5440 Views 0 comment Print

Deemed fiction created in Ss.(1) and Ss.(2) of S. 50 is restricted only to the mode of computation of capital gains contained in S. 48 and S. 49 and does not apply to other provisions. A fiction created by the legislature has to be confined to the purpose for which it is created. Further, S. 54E does not make any distinction between depreciable assets and non-depreciable assets. Exemption available u/s.54E cannot be denied by referring to the fiction created u/s.50. Benefit of S. 54E is available to the assessee irrespective of the fact that the computation of capital gains is done either u/s.48 and u/s.49 or u/s.50. Legal fiction created by the statute is to deem the capital gain as short-term capital gain and not to deem the asset as short-term capital asset. Therefore, it cannot be said that S. 50 converts long-term capital asset into a short-term capital asset. Accordingly, the Tribunal was justified in allowing exemption u/s.54E in respect of the capital gains arising on the transfer of a capital asset on which depreciation had been allowed.

Section 50 nowhere says that depreciated assets shall be treated as short-term assets

March 6, 2012 3044 Views 0 comment Print

Section 54E, read with section 50, of the Income-tax Act, 1961 – Capital gains – Not to be charged in certain cases – Assessment year 1991-92 – Whether section 50 nowhere says that depreciable asset shall be treated as short-term capital asset and section 54E has an application where long-term capital asset is transferred – Held, yes – Whether capital gain may have been received by assessee on depreciable asset, and if conditions necessary under section 54E are complied with by assessee, he will be entitled to benefit under section 54E – Held, yes

Benefit of indexation not available on depreciable Assets

March 6, 2012 20180 Views 0 comment Print

Section 50 of the Income-tax Act, 1961 – Capital gains – Computation of, in case of depreciable assets – Assessment year 1994-95 – Whether for purpose of section 50(2), where 100 per cent depreciation had been allowed on assets, whole of amount received by assessee on sale of those depreciated assets is required to be treated as capital gain arising from transfer of short-term capital assets – Held, yes

Clarification Regarding Filing of Conflicting Returns by Contesting Parties

March 6, 2012 459 Views 0 comment Print

The Ministry of Corporate Affairs has clarified that Circular No. 19 and 20 of 2011 issued on 02.05.2011 that were issued for laying down certain procedure to regulate cases wherein filing of conflicting returns with regard to appointment of Directors or change of Director/Directors have now been superseded. This has been done in the light of some specific cases wherein it appears that either there was lack of consent of the removed/changed director or due process of Law were not followed.

Art of Internal Auditing!

March 6, 2012 3764 Views 0 comment Print

Now, the world is in twenty first century, everywhere changes could be visualised but with respect to accounting, auditing etc, where is the change? Modern organisations have become more sophisticated and thus resulted in decentralisation of their activities and consequently the top management is remotely concerned with the day to day activities of the Organisation. With this backdrop the internal auditing has acquired a great deal of significance. The following are my opinion about modern Internal Audits. Let us see what it is……..

Payment to ESI department for delay allowable under section 37(1)

March 6, 2012 978 Views 0 comment Print

Payment paid by company to ESI department for delay in payments was nothing but compensation and was compensatory in nature. Thus, the impugned amount was to be allowed u/s 37(1).

Income taxed in the hand of Firm cannot be taxed in the hand of Partner

March 6, 2012 663 Views 0 comment Print

Briefly stated the assessee is a Partner in the firm M/s Balachandra Laboratories. The firm had property at Thane on which development rights were transferred to M/s Friends Development Corporation (FDC) for an amount of Rs.17.00 crores. The said firm paid one third of consideration to legal heirs and Ms Balachandra laboratories claimed deduction in their assessment. The assessee happens to be one of the legal heirs of Late Shri C N Bhatavadekar. In the course of inquiry and assessment proceedings the issue relating to taxing of capital gains in the hands of the firm resulted in allowing the claim made to M/s Videocon Properties Ltd at Rs.95.00 lakhs paid to avoid civil litigation consequent to the compromise reached before the Bombay High Court. However, an amount of Rs.5.29 crores i.e. 1/3 rd of the total amount paid to legal heirs of Shri C N Bhatavadekar (who had 33% share in the property) was not allowed on the reason that it was an appropriation of the firm’s income. There were other issues with reference to the cost of acquisition etc., in the firm’s case which are not relevant for the issue in the present appeal.

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