The object of the transaction namely the loan transaction is towards the purchase of the capital asset as against the running of the regular business such a receipt would be a capital receipt. Therefore, by applying the said principle laid down by the Honourable Apex Court there is no doubt that the grant of loan being one for the purpose of purchase of capital asset which was also utilised for the same is only a capital receipt.
In the absence of link or connection between the gift made by the devotees and the profession or avocation carried on by the assessee, a religions head, the personal gift cannot be termed as income taxable under the Act
In order to fall within the proviso to section 147, apart from stating that there are reasons for the authority to believe that there has been escapement of chargeable income, it should also record that such escapement is due to the failure of the assessee to disclose fully and truly all material particulars necessary for his assessment for relevant assessment year; such a recording is absolutely mandatory as per the provision and as laid down in various judgments
The appellant/revenue has filed the above Tax Case Appeal against the order of the Income Tax Appellate Tribunal, ‘A’ Bench, Chennai, dated 27.04.2007 in ITA.No.1862/Mds/2004. 2. When the appeal came up for admission on 09.03.2010, this Court admitted the same on the following substantial questions of law:
In a recent decision, Honourable Madras High Court has upheld the legislative competence of levy of service tax on software services by the central government
The judgment of the Supreme Court is an expression of opinion on the interpretation of statute. Merely because a judgment has been rendered, the same cannot be a ground for reopening the assessment u/s 147 as it amounts to a change of opinion. Austin Engineering 312 ITR 70 (Guj) followed).
Tamil Nadu Magnesite Ltd. Vs. CIT (Madras HC) – In view of the law laid down by the Hon ble Supreme Court in Commissioner of Income Tax v. Gujarat Electricity Board (cited supra), after passing of an order under Section 143(3) of the Act, intimation under Section 143(1)(a) of the Act gets merged with the said order under Section 143(3) of the Act and the intimation under Section 143(1)(a) of the Act does not any more independently survive for rectification by the Assessing Authority under Section 154 of the Act.
Infotech Software Dealers Association (hereinafter referred to as “the ISODA” or the “Petitioner”) is a society registered under the Societies Registration Act having its headquarters at Mumbai. Members of ISODA are engaged in the business of reselling of computer software products falling under 3 categories – (i) Shrink Wrap Software; (ii) Multiple User Software/Paper License and (iii) Internet Download. The ISODA filed the subject petitions under Article 226 of The Constitution of India, praying for the issue of a Writ of Declaration to declare Section 65(1 05)(zzzze) of Chapter V of Finance Act, 1994 (as amended by Finance No.2 Act of 2009) (hereinafter referred as “the Finance Act”) in relation to the business activities of the members of the Petitioner as: • Null and void; • Ultra vires and unconstitutional of the provisions of Article 245, Entries 92C and 97 of List-I, Entry 54 of List-II of Schedule VII of the Constitution of India; and • Contrary to provisions of Articles 14, 19(1)(g), 265 and 268A of the Constitution of India. The writ petitions raised the following three questions: • Whether software is goods? • Whether supply of software pursuant to the End User License Agreement is to be treated as sale or service? • Whether the Parliament has the legislative competency to levy Service Tax on Information Technology Software Services?
The High Court held that Section 65(105)(zzzze) does not relate to goods as such as it imposes service tax on services provided or to be provided in relation to information technology software. The same can be brought under Entry 97 of List 1 of Schedule VII which relates to the residuary powers of the Parliament to make laws. Thus, the Parliament has the legislative competence to make laws relating to it.
The law of limitation has been enacted only to give a finality to a proceedings and not destroy statutory appellate remedy. The Court can condone the delay in spite of the fact the delay is very enormous-, if the Court is satisfied, with the reason stated in the affidavit. At the same time, even a short spell of delay may stare at the appellant if the appellant is not able to give a cogent acceptable reason for the delay.
