Nayan Builders & Developers Pvt Ltd vs. ITO (ITAT Mumbai)- When the High Court admits substantial question of law on an addition, it becomes apparent that the addition is certainly debatable. In such circumstances penalty cannot be levied u!s 271(1)(c) as has been held in several cases including Rupam Mercantile Vs. DCIT [(2004) 91 ITD 237 (Ahd) (TM)] and Smt.Ramila Ratilal Shah Vs. ACIT [(1998) 60 TTJ (Ahd) 171].
Addl. CIT v Weizmann Ltd. ITAT, Mumbai * As long as the assessee has sufficient interest free funds, the presumption to be taken is that the investments are made out of such interest free funds. Mere fact of allowing interest free advance at a rate lower than the rate on which borrowings are made, cannot justify the disallowance of interest on borrowed funds. The CIT(A) was justified in making ad-hoc disallowance on account of foreign travelling expenses since the complete details of expenses were not provided by the assessee.
Ramesh Babu Rao vs. ACIT (ITAT Mumbai) – Considering the fact that assessee is not a broker or sub-broker and also not having any office establishment and also on the fact that all the shares as available on 0 1.04.2005 were sold mostly by the end of May and few shares at the end of September, assessee has intended to be an investor subsequent to the change in the scheme of tax by the Finance Act 2005. On these facts, we see no reason to interfere with the findings of the CIT(A) in holding that the assessee’s transactions are to be treated as capital gains, short term or long term depending on the period of holding.
Nagindas P. Sheth (HUF) vs. ACIT (ITAT Mumbai) -Merely because assessee transacted in 158 shares that should not be taken as a sole criterion to come to the conclusion that assessee is a trader in shares. It is not in dispute that in the books of accounts assessee has declared the shares as an investment and the finding of the learned CIT (A) that only own funds were utilised for purchase of shares was not contradicted by the learned DR. It was also highlighted by the learned CIT(A) that assessee had not indulged in any squaring-up of the transactions on the same day. On a conspectus of the matter, we are of the view that the transactions of purchase and sale of shares, in the instant case, deserves to be considered as investment and profit thereon has to be assessed to tax under the head ‘capital gains’.
The Mumbai bench of the Income-tax Appellate Tribunal, (“Tribunal”) in a ruling’ in the case of Citicorp Banking Corporation, Baharain v. Addl. Director of Income Tax (I.T.)-Range 1-[2011-T11-40-1TAT-MUM-INTL] , held that losses arising on cancellation of foreign exchange forward contracts entered into by the assessee for protecting it against the risk of currency fluctuation would be characterised as capital loss and the said loss can be set-off against other capital gains under the provisions of the Income-tax Act, 1961 (the “Act”). Further, the Tribunal also held that section 115AD provides for tax rates on income from securities or capital gains and it has nothing to do with determination of the nature of gain or loss i.e. capital or revenue.
Section 2(47) of Income-tax Act defines transfer, which, inter alia includes sale, exchange, relinquishment of the asset or extinguishment of any rights therein. In the case of Phulchand Sons Investments Pvt. Ltd. v. ACIT the Mumbai Bench of Income Tax Appellate Tribunal observed that the assessee had undertaken a loan transaction and not sale of shares during the subject assessment year. The revenue authorities were unable to bring any evidence on record to establish that the assessee had engaged in a sale transaction and not a loan transaction. Accordingly, the Tribunal held that lending of shares is not a ‘transfer’ within the meaning of section 2(47) of the Act, and hence, is not taxable.
Synergy Entrepreneur Solutions Pvt Ltd vs. DCIT (ITAT Mumbai)- The reason given for the revision in the s. 263 order (that the AO has not verified the issue) is different from the reason set out in the show-cause notice (that speculation loss cannot be set-off against other income). If a ground of revision is not mentioned in the show-cause notice, it cannot be made the basis of the order for the reason that the assessee would have had no opportunity to meet the point (Maxpack Investments 13 SOT 67 (Del), G.K. Kabra 211 ITR 336 (AP) & Jagadhri Electric Supply 140 ITR 490 (P&H) followed);
“Whether in the facts and circumstances of the case where the delay in the disposal of the relevant appeals is not attributable to the assessee, the Tribunal can extend the stay already granted beyond the period of 365 days even after 01.1 0.2008 or it has no power to grant/extend such stay as a result of amendment made by the Finance Act 2008 by substituting third proviso to Section 254(2A) w.e.f. 01.10.2008?”
Recently, the Mumbai bench of the Income-tax Appellate Tribunal (the Tribunal) in the case of ITO v. Galaxy Saws P. Ltd. (ITA No.3747/M/2010) (Judgement Date: 11 March 2011, Assessment Year: 2005-06) held that revaluation reserve not routed through Profit & Loss Account but directly transferred to balance sheet could not be added to net profit while computing the book profit for the purpose of Minimum Alternate Tax (MAT). Further, the Tribunal reiterated that principle that once the accounts have been prepared as per the provisions Schedule VI of the Companies Act and adopted at the Annual General Meeting (AGM) of the company, the net profit disclosed in such accounts cannot be tinkered with by the Assessing Officer (AO) while computing the book profit.
The Mumbai Bench ‘L’ of the Income Tax Appellate Tribunal (the “Tribunal”), on 23 February 2011, pronounced its ruling in the case ACIT vs. M/s. NGC Network (India) Pvt. Ltd., Mumbai, ITA No. 5307/M/2008. The Taxpayer’s position under appeal filed by the Department with the Tribunal related to the use of independent comparables under TNMM for justifying the arm’s length nature since the same was accepted by the AO for a subsequent year. The AO argued that the comparables were not acceptable since they were different from functional and operational point of view. The Tribunal, ruled that the most appropriate comparison, under the facts and circumstances of the case, would be between the results achieved by the Taxpayer for the relevant assessment year and those earned by comparable uncontrolled entities during the corresponding period (provided such data is available for comparables), particularly where the set of comparable companies as well as the methodology have already been agreed to by the Department in the subsequent years.
