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Sunday, December 8, 2019

ITR’S TRIBUNAL TAX REPORTS

 ONLINE EDITION
(Issue dated : 2-12-2019)
SUBJECT INDEX TO CASES REPORTED
Business expenditure --Setting up and commencement of business--Expenditure incurred relating to setting up of inland clearance depot, container freight station and warehousing
complex--Projects under construction--Assessee capitalizing all direct and indirect expenses including finance cost incurred for development of project--Business not set up and ready for commencement of business--Expenditure debited to profit and loss account cannot be allowed as deduction--Income-tax Act, 1961, s. 28-- Horizon Infrastructure Ltd. v. Deputy CIT (Mumbai) . . . 455
Company --Book profits--Computation under section 115JB(2) to be made without resorting to computation as contemplated under section 14A read with rule 8D--Income-tax Act, 1961, s. 115JB-- Horizon Infrastructure Ltd. v. Deputy CIT (Mumbai) . . . 455
Dividend --Deemed dividend--Deeming fiction--Onus on assessee to demonstrate by cogent evidences that receipt of loan or advances for business purposes--Income-tax Act, 1961, s. 2(22)(e)-- Empee Holdings Ltd. v. Deputy CIT (Chennai) . . . 473
Income --Disallowance of expenditure relating to exempt income--Where there is no exempt income, no disallowances can be made in respect of expenditure incurred in relation to exempt income--Only investments which yield exempt income needed to be considered--Recomputation of expenses incurred in relation to exempt income required--Matter remanded--Income-tax Act, 1961, s. 14A--Income-tax Rules, 1962, r. 8D-- Horizon Infrastructure Ltd. v. Deputy CIT (Mumbai) . . . 455
Reassessment --Income escaping assessment--Primary facts stated by assessee in original assessment found false--Assessing Officer mentioning details of report of Investigation Wing as well as information received from Central Bureau of Investigation--Statement of donors denying donation--Statement of entry operator confirming accommodation entries--Statement of chartered accountant of assessee--Reassessment valid--Income-tax Act, 1961, ss. 147, 148-- Brijbasi Education and Welfare Society v. Addl. CIT (Delhi) . . . 500
----Notice within four years--Proviso to section 147 not applicable--Assessing Officer not enquiring about loan or advance between assessee and its subsidiary company--Assessee not furnishing details of loan transactions between itself and its subsidiary during course of original assessment proceedings--Assessing Officer not forming any opinion on chargeability to tax of loans and advances as deemed dividend--Not a case of change of opinion--Reassessment valid--Income-tax Act, 1961, ss. 147, 148-- Empee Holdings Ltd. v. Deputy CIT (Chennai) . . . 473
PRINT EDITION
Volume 76 : Part 2 (Issue dated : 2-12-2019)
SUBJECT INDEX TO SHORT NOTES OF CURRENT CASES
Capital gains --Exemption--Transfer or capital asset and purchase or construction of residential house within prescribed period--Developer not delivering possession and assessee unable to complete construction within prescribed period--Delay in construction not attributable to assessee--Assessee making full payment to developer more than deduction claimed by assessee--Entitled to exemption--Income-tax Act, 1961, s. 54F-- Abodh Borar v. ITO (Delhi) . . . 30
----Long-term capital gains--Full value of consideration--Payments of higher stamp duty by vendee not affecting any rights of assessee--Sale consideration disclosed jointly by assessees far more than value adopted for purpose of stamp duty--No addition to be made in hands of assessees on account of long-term capital gains--Income-tax Act, 1961, s. 50C-- Smt. Mahinabanu Nainabanu Sipai (Jadeja) v. Deputy CIT (Ahd) . . . 32
Cash credit --Amounts credited in bank statement not credited in books of account--No cash deposits recorded in books of account of assessee--Transactions outside books of account--Addition in respect of cash deposits in bank account unsustainable--Income-tax Act, 1961, s. 68-- Smt. Asha Sanghavi v. ITO (Visakhapatnam) . . . 17
----Unsecured loans--Assessing Officer duty bound to investigate creditworthiness of creditors or subscriber, verify identity of subscribers, and ascertain whether transaction genuine or bogus entries of name lenders--Addition without issuing summons to lenders--Assessing Officer not making further enquiries on her own--Assessee discharging primary onus to prove identity of depositors, genuineness of transactions and creditworthiness of depositors--Treating deposits as anonymous donations unlawful--Income-tax Act, 1961, s. 68-- Deputy CIT (Exemption) v. Ram Nath Memorial Trust Society (Delhi) . . . 27
Charitable purpose --Exemption--Voluntary contribution--Application of income--Whether contribution received for construction of building from students as voluntary contribution for corpus of trust--To be examined--Income-tax Act, 1961, s. 11-- Indian Education Society v. ITO (Delhi) . . . 21
Penalty --Concealment of income--Furnishing inaccurate particulars of income--Assessee declaring long-term capital loss in return and providing all relevant information to Assessing Officer--Department finding assessee’s share in property less but claiming higher ratio of sale consideration--Bona fide clerical mistake on part of assessee and explained before Assessing Officer as well--Returned income accepted and no loss to Revenue--Not a case of concealment of income or furnishing inaccurate particulars of income--Penalty not leviable--Income-tax Act, 1961, s. 271(1)(c)-- Anil Gupta v. Asst. CIT (Delhi) . . . 22
----Concealment of income--Furnishing inaccurate particulars of income--Assessing Officer must record conclusive finding whether penalty was for furnishing inaccurate particulars of income or for concealment of income--Assessing Officer cannot use phrase that “penalty is being imposed for furnishing inaccurate particulars or concealment of income”--Income-tax Act, 1961, s. 271(1)(c)-- Divyesh Chhanganlal Patel v. ITO (Ahd) . . . 19
----Concealment of income--Furnishing inaccurate particulars of income--No mala fide intention in assessee to make erroneous claim when it filed return at such huge figure--Assessee disclosing all facts and not challenging addition after decision of Commissioner (Appeals)--Penalty to be calculated on addition under section 35D and rest confirmed--Income-tax Act, 1961, s. 271(1)(c)-- Omni Lens P. Ltd. v. Deputy CIT (Ahd) . . . 28
Reassessment --Exemption--Educational institution--Assessee complying with specific query raised in original assessment to substantiate its claim that it exists solely for educational purpose and substantively financed by Government--No new material in possession of Assessing Officer to form belief by reason of non-disclosure truly and fully of all material facts necessary for assessment--Reopening on basis of Revenue audit objection not constituting information--Change of opinion--Reassessment not valid--Income-tax Act, 1961, ss. 147, 148-- Sanatan Dharam Shiksha Samittee v . ITO (Exemption) (Delhi) . . . 25
----Validity--Additions made in reassessment order of items other than those mentioned in reasons for reopening--Additions of items mentioned in reassessment notice deleted in appellate order--No addition on account of items recorded in reasons in existence--Additions on account of other items do not survive--Reassessment not valid--Income-tax Act, 1961, ss. 147, 148-- Naresh Kumar Garg v. Asst. CIT (Delhi) . . . 18
----Validity--Item of income on which reassessment proposed not added but another deduction disallowed--Impermissible--Income-tax Act, 1961, ss. 147, 148-- Vibhut Builders and Engineering P. Ltd. v. ITO (Delhi) . . . 24
ITR’S TRIBUNAL TAX REPORTS
PRINT EDITION
ITR (Trib) Volume 76 : Part 2 (Issue dated : 2-12-2019)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Business expenditure --Capital or revenue expenditure--Recruitment and training expenses--Revenue expenditure--Income-tax Act, 1961, s. 37-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
----Disallowance--Payments liable for deduction of tax at source--Amounts voluntarily disallowed and offered to tax--Impact of write back in books for current year to be reversed--Assessee entitled to deduction--Income-tax Act, 1961, s. 40(a)(ia)-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
----Loss on account of exchange difference or marked to market losses as on date of balance-sheet--Not a notional or contingent loss--Allowable--Income-tax Act, 1961, s. 37-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
Depreciation --Uninterrupted power supply systems--Vital component of computer system--Entitled to depreciation at sixty per cent.--Income-tax Act, 1961, s. 32-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
Exemption --Export--Relocation of unit from one place to another in order to meet shortage of space and to effect expansion of business--Not splitting or reconstruction of existing business--Entitled to exemption--Income-tax Act, 1961, s. 10A-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
International transactions --Transfer pricing--Arm’s length price--Advertising, marketing and promotion expenses--No understanding or arrangement or action in concert inferable from terms of marketing development fund agreement--No international transaction--International transaction cannot be presumed to exist merely on basis of bright line of expenditure incurred by comparable companies--Assessee bearing full risks and rewards of manufacturing and selling its goods in Indian market--Brand promotion cannot be taken to be for benefit of associated enterprise--Income-tax Act, 1961, s. 92B-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
----Transfer pricing--Difference between price recorded in books and arm’s length price determined less than 5 per cent.--Transfer pricing adjustment not warranted--Functions, assets and risks manifested in terms of scale, size, head-count, presence of valuable intangibles--Relevant considerations to be taken into account--Suitable adjustments for differences in working capital allowable--Working capital adjustment allowable in software segment under transactional net margin method--Reimbursements received by assessee from its associated enterprise under marketing development fund agreement--To be taken into account both as operating income as well as operating expenditure while computing net profit margin under transactional net margin method analysis--Transfer pricing adjustment to be confined to adjustments to proportionate value of international transactions with associated enterprises--Income-tax Act, 1961, s. 92B-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
----Transfer pricing--Transactional net margin method--Comparable companies--Assessee’s manufactured goods in the category of finished goods--Component manufacturer--Companies having more than 15 per cent. related party transactions--Companies functionally dissimilar--Company’s net profit margin not possible to determine--Extrapolated results not drawn from published quarterly results but derived on proportionate basis from two overlapping years’ financials--Company’s accurate segmental results not available--Product profile of company dissimilar to that of assessee--Functional assets and risks profile of company dissimilar to that of assessee--Absence of segmental margins--Company’s annual report not containing segmental bifurcation of profitability between technical support segment and software segment--Company not providing bifurcation of profitability between hardware and software development--Company consistently held incomparable on account of peculiar facts surrounding its history--Not to be selected as comparables--Income-tax Act, 1961-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
Income-tax Act, 1961 :
S. 10A --Exemption--Export--Relocation of unit from one place to another in order to meet shortage of space and to effect expansion of business--Not splitting or reconstruction of existing business--Entitled to exemption-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
S. 32 --Depreciation--Uninterrupted power supply systems--Vital component of computer system--Entitled to depreciation at sixty per cent.-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
S. 37 --Business expenditure--Capital or revenue expenditure--Recruitment and training expenses--Revenue expenditure-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
----Business expenditure--Loss on account of exchange difference or marked to market losses as on date of balance-sheet--Not a notional or contingent loss--Allowable-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
S. 40(a)(ia) --Business expenditure--Disallowance--Payments liable for deduction of tax at source--Amounts voluntarily disallowed and offered to tax--Impact of write back in books for current year to be reversed--Assessee entitled to deduction-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145
S. 92B --International transactions--Transfer pricing--Arm’s length price--Advertising, marketing and promotion expenses--No understanding or arrangement or action in concert inferable from terms of marketing development fund agreement--No international transaction--International transaction cannot be presumed to exist merely on basis of bright line of expenditure incurred by comparable companies--Assessee bearing full risks and rewards of manufacturing and selling its goods in Indian market--Brand promotion cannot be taken to be for benefit of associated enterprise-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145

----International transactions--Transfer pricing--Difference between price recorded in books and arm’s length price determined less than 5 per cent.--Transfer pricing adjustment not warranted--Functions, assets and risks manifested in terms of scale, size, head-count, presence of valuable intangibles--Relevant considerations to be taken into account--Suitable adjustments for differences in working capital allowable--Working capital adjustment allowable in software segment under transactional net margin method--Reimbursements received by assessee from its associated enterprise under marketing development fund agreement--To be taken into account both as operating income as well as operating expenditure while computing net profit margin under transactional net margin method analysis--Transfer pricing adjustment to be confined to adjustments to proportionate value of international transactions with associated enterprises-- Samsung India Electronics P. Ltd. v. Addl. CIT (Delhi) . . . 145

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