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The provisions of Explanation to section 73 do not distinguish between the transaction of trading in shares on actual delivery or without delivery basis. Admittedly the assessee does not fall under any of the exceptions provided in the Explanation and hence, the purchase and sale of shares traded during the year under consideration is in nature of speculation business within the meaning of proviso to section 73 of IT Act, 1961.
Employee stock options (ESOPs) is a significant employer-granted benefit that too is subject to the above FBT /perquisite-based taxation system. In fact, it almost seems as if the authorities cannot quite make up their minds as to how they wish to tax shares given to employees by their employers on a concessional basis. Having been subject to various changes in their valuation norms, the following is the latest position:
In a recent ruling Delhi Income Tax Appellate Tribunal (ITAT) in the case of Growth Avenue Securities Pvt. Ltd. (Taxpayer) v DCIT [ITA No. 3912/Del/2005] on the issue of inclusion of capital gains in book profits while computing Minimum Alternate Tax (MAT) under the provisions of the Indian Tax Law (ITL), where such capital gains are not chargeable to tax under the normal provisions of the ITL. The ITAT held that any adjustments outside the scope of the MAT computation mechanism, under the ITL, is not permissible and since the exclusion of capital gains is not specifically provided therein, a taxpayer is not entitled to such an adjustment while computing book profits for the purpose of MAT.
This follows a renewed effort by CBDT to seek clarification on the issue. The finance ministry has decided to keep the issue of taxing participatory notes (P-Notes) on the back burner to encourage foreign inflows. These views follow a renewed effort by the Central Board of Direct Taxes (CBDT) to seek a clarification on the taxation of the P-Notes. Sources said the clarification was sought since it was noticed that the issuance of these notes had gone up, following a buoyancy in the equity market.
The Bangalore Income Tax Appellate Tribunal (the Tribunal) in recent case of Associated Electronic & Electrical Industries Pvt. Ltd. v. DCIT (2009-TIOL-263- ITAT-BANG) held that transfer of trade mark is not transfer of goodwill as the goodwill of a business cannot be sold without selling business itself. Thus, the trade mark and goodwill are two different assets. Further, since the capital gains on sale of trade mark came into effect from 1 April 2002 there was no capital gain on sale of trade mark for the year under consideration.
The last date for filing your tax returns for the financial year 2008-2009 was July 31, 2009. But even though the process got a tad simpler with the online option, some of you may have missed your deadline. But don’t fret. You have a second chance.
With the tax authorities out to prove that the existence of a large number of transactions in shares is to be treated as business income, while the focus of assessees generally has been on trying to refute the tax authorities arguments through stressing the various factual aspects related to the transactions, very often one tends to miss out on exploring the possible alternative contentions, which could mitigate the impact or at times even dissuade the Assessing Officer from treating such transactions as business transactions. What are these contentions?
Whether for the purpose of disallowance under Section 14A of the Act:-(a) Rule 8D is to be considered as retrospective; Whether before application of Rule 8D the Assessing Officer should give a holding that he is not satisfied for the basis or quantum of expenses disallowed by the Assessee; b) Whether disallowance is to be made if Investment is held as stock-in-trade?
Whether in determination of book profit u/s 115JB of I. T. Act, adjustment is to be made for:-(a) Depreciation not debited to P & L Account but a note is given in respect thereof; (b) Capital gain not credited to P & L account and taken to reserve; (c) Prior period expenses and extra ordinary items; (d) Difference in the amount of depreciation on account of change in the method of providing depreciation i.e. straight line to WDV or vice-versa?
Special Bench of the Income Tax Appellate Tribunal, New Delhi in the case of Cheminvest Ltd. (ITA Nos.87Del//2008, 4788/Del/2007 and 233/Ahd/ 2006) holds that expenditure relating to exempt income to be disallowed even if assessee has not earned any tax-free income.
