The taxpayer was engaged in share trading. During the assessment year 2004-05, the taxpayer had set off the indexed long term capital loss against non-indexed long term capital gains. The Assessing Officer did not allow the set off of indexed long term capital loss against non-indexed long term capital gains. Vipul A. Shah v. ACIT (ITA No 3190/Mum/2010) Mumbai ITAT dated 8 April 2011
ITAT Mumbai in the case of Manali Investments v. ACIT held that the short term capital gains arising from the transfer of depreciable assets held for more than 36 months under Section 50(2) of the Income-tax Act, 1961 (the Act) can be set-off against the brought forward long term capital losses under Section 74 of the Act.
DHL Express (India) Pvt Ltd vs. ACIT (ITAT Mumbai) The assessee’s argument that comparables with a turnover less than 20% of the assessee’s turnover should be considered is not acceptable because it is a universal fact that there are lot of differences between large businesses and small businesses operating in the same field.
Shantilal M. Jain vs. ACIT (ITAT Mumbai)-Though it is the case of the revenue that due to volume, magnitude, frequency, continuity, regularity, the ratio between purchase and sale clearly indicate that income on account of purchase and sale of shares should be treated as income from business and not as income from STCG, the AO has, from AY 2003-04 to 2008-09 (except for the impugned year 2006-07), consistently accepted the income as being STCG. In these circumstances, the Rule of consistency as propounded by the Bombay High Court in Gopal Purohit 228 CTR 582 (Bom) is squarely applicable and the income has to be treated as STCG.
Recently ITAT Mumbai in the case of ITO vs. United Marine Academy (Mumbai ITAT) held that Assessing Officer thus was right in applying the provision of section 50C to the transfer of depreciable capital assets covered by section 50 and in computing the capital gain arising from the said transfer by adopting the stamp duty valuation.
Recently ITAT Mumbai in the case of Ruchi Strips & Alloys Ltd vs. DCIT held that the concealment of income had its repercussions only when the assessment was done under the normal procedure. If the assessment as per the normal procedure was not acted upon and it was the deemed income assessed u/s 115JB which became the basis of assessment, the concealment had no role to play and was totally irrelevant. The concealment did not lead to tax evasion at all.
The AO’s argument that the assessee could have utilized its surplus funds for repaying the borrowings instead of investing in shares and by not doing so, there was diversion of borrowed funds towards investment in shares to earn dividend income is not acceptable in view of CIT vs. Hero Cycles Ltd 323 ITR 518 (P&H) where Abhishek Industries was distinguished and it was held disallowance u/s 14A of interest on borrowed funds was not permissible if the investment in shares was made out of own funds.
Renu Hingorani vs. ACIT (ITAT Mumbai) – The AO had not questioned the actual consideration received by the assessee but the addition was made purely on the basis of the deeming provisions of s. 50C. The AO had not doubted the agreement or given any finding that the actual sale consideration was more than the sale consideration stated in the sale agreement. The fact that the assessee agreed to the addition is not conclusive proof that the sale consideration as per agreement was incorrect and wrong. Accordingly, there was no concealment of income or furnishing inaccurate particulars of income.
Raj Ratan Palace Co-op Hsg Soc vs. DCIT (ITAT Mumbai)- The assessee-society had merely given permission to the developer to construct on the society’s land. No part of the land was ever transferred by the society. The Society continued to be the owner of the land and no change in ownership of land had taken place. Mere grant of consent will not amount to transfer of land/or any rights therein. The amount of Rs. 3.02 crores received by the members (on which some of them had paid tax) was not assessable in the assessee’s hands either u/s 2(24) or as capital gains
ITO (TDS-1), Ahmedabad v. Apollo Hospitals International Ltd – There are two types of agreements. One of the covenant is stated to be in the nature of employer/employee agreement and the other is stated to be FGC contract. The distinction between the two inter alia include: a) In case of the employee doctors, there is a list of allowances (basic, HRA, etc). The consultant doctors are paid a lumpsum fee. b) The employee doctors‟ agreement had a clause for leave entitlement unlike the FGC contract c) Employee doctors are not entitled for any other full time employment d) Consultant doctors were not employed by service rules but were expected to follow the code of conduct
