Reported Judicial Decisions- Direct Taxes
Author: CA. P.M.Veeramani
Statute: Income Tax Act
Sec.2(15) - wider definition for education
Decision in favour of : Assessee
Title : Gujarat Safety Council vs ITO
Citation: 180 ITD 711
Bench: ITAT Ahmedbad
In view of changing time and widening horizon of knowledge and rapid change in method of teaching, multifaceted activities in form of handbook/literature published together with activities like holding conferences on industrial safety programs, public talks, seminars, workshops on an ongoing basis to inculcate industrial safety measures would also be bracketed in league of educational activities
Statute: Income Tax Act
Sec.2(47) – Permitting construction is not transfer
Decision in favour of : Revenue
Title : Seshasayee Steels Private Ltd vs ACIT
Citation: 421 ITR 46
Bench: Supreme Court of India
(i) Under the agreement to sell dated May 15, 1998, both parties were entitled to specific performance. The expression used in clause 16 was that the party of the first part gave “permission” to the party of the second part to start construction on the land. Clause 16 would, therefore, lead to the position that a licence was given to another upon the land for the purpose of developing the land into flats and selling them. Such licence could not be said to be “possession” within the meaning of section 53A of the Transfer of Property Act, 1882, which is a legal concept, and denotes control over the land and not actual physical occupation of the land. This being the case, section 53A of the 1882 Act could not possibly be attracted to the facts for this reason alone.
(ii) It was clear that as on the date of the agreement to sell, the owner’s rights were completely intact both as to ownership and to possession even de facto, so that section 2(47)(vi) of the 1961 Act equally, could not be said to be attracted.
(iii) The finding of the Tribunal was that all the cheques mentioned in the compromise deed had, in fact, been encashed. This being the case, the assessee’s rights in the immovable property were extinguished on the receipt of the last cheque and the compromise deed could be stated to be a transaction which had the effect of transferring the immovable property in question.
(iv) The appellant’s claim that capital gains was taxable in the 1999-2000 is not correct and the same in taxable in the year 2003-05 when the last cheque was encashed and transfer was complete
Statute: Income Tax Act
Sec.11 – Trust to be taxed as individual
Decision in favour of : Assessee
Title : Saraswat Hitwardhak vs ITO
Citation: 77 ITR Trib SN 89
Bench: ITAT Mumbai
The trust was treated as an individual. Therefore, the Assessing Officer was to tax the assessee treating it as an individual instead of an association of persons. The fact that the beneficiaries were a group of individuals did not mean that the liability of the assessee was of the association of persons. The term “individual” does not mean a single living human being. It can include a body of individuals constituting a unit for the purposes of the Act. Even though the assessment of income was in the hands of the trust, it had to be made in the same manner and to the same extent as it would have been made in the hands of the beneficiaries.
Statute: Income Tax Act
Sec.11(2) – Purpose of accumulation
Decision in favour of : Assessee
Title : National Stock exchange investor protection fund trust vs DCIT
Citation: 78 ITR Trib SN 12
Bench: ITAT Mumbai
The Assessing Officer noted that in form 10, the assessee had claimed accumulation without specifying the purpose of accumulation but merely reproducing its objects. The trust had only one object and thus there was no question of ambiguity. The assessee was entitled to exemption under section 11(2) .
Statute: Income Tax Act
Sec.40A(3) – Deposit in payee account
Decision in favour of : Revenue
Title : Ajai Kumar Singh Khaldelial
Citation: 421 ITR 6
Bench: Allahabad HC
The deposit of cash directly in the bank account of the beneficiary supplier was not routed through any clearing house nor was the money sent through electronic mode and therefore such a transaction would not be covered by rule 6DD(c)(v) and the benefit of the provision could not be given to the assessee.
The term “use of electronic clearing system through bank account” in section 40A(3) would necessarily include transfer of funds by electronic mode through clearing system. Any transfer of funds through the use of electronic clearing system through a bank account would mean a transfer of funds through electronic mode of transfer, i.e., RTGS, IMPS, NEFT etc., where the funds are transferred through the bank account of one individual into the bank account of a beneficiary through electronic means. When the funds are transferred through the electronic clearing system at least two banks or two branches of the same bank have to be involved. Only then is the money transferred through the electronic clearing system between them.
Statute: Income Tax Act
Sec.54 F – Perpetual lease eligible
Decision in favour of : Assessee
Title : N.Ramaswamy vs ITO
Citation: 180 ITD 702
Bench: ITAT Chennai
In view of definition as mentioned in section 2(47)(vi), transaction of perpetual lease agreement by which assesse took possession of property for unlimited period, has to be construed as purchase of property within the meaning of section 54F
Statute: Income Tax Act
Sec.69A – Not applicable on presumptive cases
Decision in favour of : Assesseee
Title : Thomas Eapen vs ITO
Citation: 180 ITD 741
Bench: ITAT Cochin
Where assesse a small trader in medicine falling under section 44AD, offered income on presumptive basis , provisions of section 69A could not be applied to make addition in respect of cash credits found in his bank account.
Statute: Income Tax Act
Sec.80P – Circulars not binding on courts
Decision in favour of : Revenue
Title: Kuthannur Service Co-operative Bank Ltd vs ITO
Citation: 420 ITR 358
Bench: Kerala HC
Clarificatory circulars are issued by Government Departments for guidance of the officers. Such circulars or instructions do bind the Department and its officers. But they do not bind the court in the interpretation of statutory provisions. Circulars issued by a Government Department cannot have any primacy over the decision of the jurisdictional High Court. Circulars or instructions given by the Department are no doubt binding on the authorities under the Act, but when the Supreme Court or the High Court has declared the law on the question arising for consideration, it will not be open to a party to contend that the circular should be given effect to and not the view expressed in the decision of the Supreme Court or the High Court.
Statute: Income Tax Act
Sec.139(5); 119(2)(b) – Delayed return
Decision in favour of : Asessee
Title : Dalmia Power Ltd vs ACIT
Citation: 420 ITR 339 SC
Bench: Supreme Court of India
Department was bound to accept the revised return filed beyond time based on order scheme of amalgamation approved by NCLT which order was issued beyond the time under 139(5). Department was given adequate notice regarding the scheme and not having raised any objection cannot turn around and ask assesse to approach CBDT for condoning the delay .
Statute: Income Tax Act
Sec.194 C – Sale of advertisement space
Decision in favour of : Assessee
Title : TimesVPL Ltd vs CIT
Citation: 421 ITR 170
Bench: Karnataka HC
The assessee had entered into an agreement for bulk sale of advertising space on a principal to principal basis by transfer of rights therein. The assessee under the agreement made purchase of advertisement space and exercised control over such space with the right to either sell it to another or retain it for itself. Thus, it was a transfer of advertising space to the assessee who in turn sold it to others. Therefore, the transaction could not be termed a contract for work, and section 194C was not applicable.
Statute: Income Tax Act
Sec.253 – No Revenue appeal in IBC cases
Decision in favour of : Assessee
Title : Shamken Multifab Ltd vs DCIT
Citation: 180 ITD 756
Bench:ITAT Delhi
Where an application filed under section 7 of IBC , against company had been admitted and moratorium under section 14 has been declared, appeal filed by revenue against assesse could not be allowed to be continued during the course of moratorium period Appeals are dismissed with liberty to AO to file the appeals after the said period making the representative of committee of creditors, IRP
Statute: Income Tax Act
Sec.264 – Cannot be rejected on time limit
Decision in favour of : Assessee
Title : Sharp Tools vs PCIT
Citation: 421 ITR 90
Bench: Madras HC
A mere typographical error committed by the assessee could not cost it payment of excess tax as collected by the Revenue. The denial for repayment of such excess collection would amount to great injustice to the assessee. Even though the statute prescribes a time limit for getting the relief before the Assessing Officer by way of filing a revised return, there was no embargo on the Commissioner to exercise his power and grant the relief under section 264 . The order rejecting the application for revision was not valid.
Statute: Income Tax Act
Sec.271A, 271B – No levy for contractor
Decision in favour of : Assessee
Title : Harshvardhan vs DCIT
Citation: 77 ITR Trib SN 81
Bench: ITAT Bangalore
Since no format of books of accounts were prescribed under the Rules for Civil Contracts, Penalty u/s 271A is not justified. When no penalty u/s 271A is leviable, Penalty u/s 271B also cannot be levied for non-audit as prescribed u/s 44AB
Statute: Income Tax Act
Sec.271AAA – Penalty not leviable
Decision in favour of : Assessee
Title : PCIT vs Patdi Commercial Investment Ltd
Citation: 420 ITR 308
Bench: Gujarat HC
The director of the assessee in his statement, had explained that the income was earned out of booking/selling shops and had specified the buildings. Thereafter the assessee could not be blamed for not substantiating the manner in which the disclosed income was derived. The cancellation of penalty by the Tribunal was justified.
Statute: Income Tax Act
Sec.271(1)(c ) – Anonymous donation
Decision in favour of : Assessee
Title : Meenakshi Ammal Trust vs ACIT
Citation: 78 ITR Trib 138
Bench: ITAT Chennai
The assessee had disclosed the entire receipt of donations. However the Assessing Officer found that it was not a voluntary donation but anonymous donation. When the assessee had disclosed the entire receipt and the expenditure and claimed the receipt was exempted under section 11 , merely because the assessee could not furnish the details of the persons from whom the donations were received, could not be a reason for concluding that the assessee had concealed any part of income or furnished inaccurate particulars. Making a statutory claim under section 11 could not be construed as furnishing inaccurate particulars.