J L Morison (India) Ltd Vs ACIT (Kolkata ITAT) – It is now settled law that if, while making the assessment, the AO examines the accounts and other details, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income, the ld. C.I.T., while exercising his power under sec. 263 of the Act, is not permitted to substitute his own view about the computation of income in place of the income assessed by the A.O., unless the order of the A.O. is patently unsustainable in law.
DCIT Vs. Akshay Eminence Developers Pvt. Ltd. (ITAT Bangalore) – The provisions of s. 80IB(10) of the Act have not subscribed that the assessee was required to begin the construction work after obtaining the approval from the local authorities and that before getting such approval if the assessee begins the construction work, such construction was not recognized. What really matter here is the date of approval of the plan, but, not the date on which it was communicated?
DHL Lemur Logistics (P) Ltd. v DCIT (ITAT Mumbai) – A well reasoned and well discussed order also facilitates appreciation when the same is called in question before the superior forum. Keeping in view the decision of the Hon’ble Delhi High Court in the case of Vodafone Essar Ltd. (supra) as well as that of the coordinate bench of this Tribunal in the case of Gap International Sourcing India (P.) Ltd. (supra) and having regard to the fact that the DRP has passed the order giving directions to the AO under section 144C without giving proper consideration to the elaborate submissions made on behalf of the assessee on the main preliminary issue, we set aside the said order and remit the matter to the file of the DRP with a direction to consider the objections of the assessee on this issue as well as the other issues once again and pass a proper and speaking order giving direction under section 144C.
Dy. DIT, Ernakulam Vs Adi Sankara Trust ( ITAT Cochin)- Income Tax – Sections 11, 12A, 32(1) – When assessee, a charitable body, has already claimed deduction for acquisition of capital assets as application of money, the further claim of depreciation on the same assets would amount to double benefits and can not be allowed.
Shantaben Karshanbhai Patel v Dy. CIT (ITAT Ahemdabad) – Merely because the AO passed the order u/s 154 of the IT Act would not make it appealable before the learned CIT(A) u/s 246A of the IT Act. The claim of interest simpliciter is not appeallable order before the learned CIT(A) as per section 246A of the IT Act. The crux of the matter shall have be seen in entirety and quoting wrong provisions of law would make it appeallable order before the learned CIT(A). The provisions of section 244A (2) are specific and on such a matter on issue the point shall have to be decided by the CCIT or CIT whose decision thereof shall be final. Accordingly, we are of the view that appeal of the assessee is not maintainable in the present form. The same is dismissed. However, the assessee is at liberty to agitate the issue before the concerned CCIT/CIT in accordance with law. The learned CCIT or CIT concerned shall decide the issue on such agitation by the assessee in accordance with law.
Assessee company in the present case is a fully owned subsidiary of Yahoo Inc, USA, which is engaged in the business of providing consumer services such as search engine, content and information on wide spectrum of topics, e-mail, chat, etc. It filed the return of income for the year under consideration on 30.10.2004 declaring total income of Nil after adjusting the brought forward losses to the extent of 3,91,47,123/-. During the course of assessment proceedings, it was noticed by the A.O. that the assessee has made a payment of 34,86,947/- to Yahoo Holdings (Hong Kong) Ltd. being cost of services/research material/advertisement media.
Recently, ITAT Mumbai (the Tribunal) in case of ACIT v. ACM Shipping India Ltd (2011) ITA No. 5085/MUM/2009 held that the commission received by the UK company for assisting the taxpayer in arranging cargo transportation was taxable as business income by virtue of their business connection in India. The Tribunal observed that reliance cannot be placed on Circular No. 23 dated 23 July 1969 since it has been withdrawn. The circular was issued in the context of sale of goods and may not apply to the current case since it relates to rendering of services.
M/s Prajna Technologies & Services Private Limited vs. DCIT (ITAT Hyderabad) – Observing the nature of business, the taxpayer never sold the right to carry on the business of its software development or its right to carry on any business. It had merely sold a specific sale contract with a client, which is routine outsourcing in all businesses. The provision of Section 55(2)(a) of the Income Tax Act, 1961 would be applicable in the present case and accordingly the transaction would fall under the ambit of the expression “right to manufacture, produce or process any article or thing”. The said expression was inserted by the Finance Act 1997 w.e.f. 1 April 1998. Hence, the contention of the taxpayer that the amendment to Section 55(2)(a) bringing the transfer of commercial right to capital gain tax is effective from the AY 2003-04 and not 2002-03 is not tenable. Hence the transfer of a specific sale contract is taxable as capital gains under Section 55(2)(a) of the Income Tax Act, 1961.
Dalal Broacha Stock Broking Pvt Ltd vs. ACIT (ITAT Mumbai – Special Bench)- Provisions of section 36(1)(ii) will apply in case of all employees including share holder employees irrespective of the fact whether any extra services have been rendered or not. The issue whether payment of bonus or commission to an employee will be covered by the provisions of section 36(1)(ii) or section 37(1) is also settled by the judgment of Hon’ble Jurisdictional High Court in case of Subodh Chandra Poppatlal vs. CIT (24 ITR 586) in which the Hon’ble High Court while dealing with similar provisions of the old Act held that when an expenditure fell under section 10(2)(x) [which corresponds to section 36(1)(ii)], in the sense that it is an expenditure in the nature of bonus or commission paid to an employee for services rendered then its validity can only be determined by the tests laid down in section 10(2)(x) and not by the tests laid down in section 10(2)(xv) which corresponds to section 37(1).
ACIT, Gandhinagar Vs Gujarat State Energy Generation Ltd (ITAT Ahemdabad) – Only such items which are specifically mentioned in the Explanation to section 115JB need to be excluded or included, as the case be, and nothing more can be brought in. All the three items listed above do not feature in the Explanation. Otherwise, the disallowance u/s.14A would be material in computation of the normal process of income while the second item interest on investment in bonds stands already included in the book profit. As far as the prior period expenses are concerned, there is no such mention in the explanation. The assessment order on the other hand is silent as to under which category it is being included for the matter to be further analysed. Therefore, as the matter stands, none of the three items can be added for computation of book profit.
