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.
CIT v Gujarat Safai Kamdar Vikas Nigam (High Court of Gujarat at Ahmedabad) – It was a scheme envisaged for implementation of certain Government programmes in particular, to uplift the living condition of manual scavengers and other Safai Kamdars involved in similar activities. Though exact words may not have been used that the funds made available are directed to form the corpus of the Corporation and to be used for such purpose, the entire purport of the scheme has to be gathered from the reading of the scheme as a whole. If so done, it leaves no doubt in our mind that the funds were made available to the Corporation for implementing the scheme in a particular manner. The assessee Corporation was not th sole trustee. The Scheduled Caste Development Board was also liable for implementation of the scheme to be supervised by a Committee headed by the Deputy Minister which included other Government officials. To our mind, the Tribunal committed no error in holding that the grant in question fulfills the requirement of section 11(d)(1) read with section 12(1) of the Act. In the result, tax appeal is dismissed.
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.
CIT Vs H.P. Marketing Board (Himachal High Court)- Marketing board is not a local authority within the meaning of section 10(20) prior to the amendment made in section 10(20) when the word `local authority’ was not defined in the Income tax Act and the definition of `local authority’ as defined in section 3(31) of the General Clause Act was applicable.
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).
CIT vs. Indian Hotels Co Ltd (Supreme Court) – The department filed a SLP challenging the order of the Bombay High Court declining to condone delay of 656 days in filing the appeal. The delay was explained as having been caused by several facts such as non traceability of case records, procedural formalities involved in the Department and the papers are to be processed through different officers in rank for their comments, approval etc. and then the preparation of the draft of appeal memo, paper book and the administrative difficulties such as shortage of staff.
Bela Juneja v CIT (Delhi High Court) – Additions under s 69 was justified since finding of facts has been arrived by lower authorities that assessee had made unexplained investment and there was huge difference between agreed price for purchase of property and price registered in sale deed and no perversity has been shown in such findings. Coming to the material available on record, enough evidence was found by the lower authorities pertaining to assessee from the premises in which she was living that the above payment in respect of property was made by her. The same has neither been accounted for nor assessee has given any satisfactory reply about the investment in question.
