Tuesday, 9 September 2014

Understanding capital receipts with latest case laws: Part – III.



We had earlier discuss in detail about the concepts of capital & revenue receipts & expenditures  along with various case laws earlier in part –I & II. In case you want to refer, the part –I & II, please click on the link below:


The subject is still a disputed one as the line between capital and revenue is very thin one
and hence given below few important recent case judgments  which will enable yourself for understanding the subject.
·         Credit of pro forma excise rebate taken into account was illusory and no real income had accrued. The assessee had communicated its reasons why it resorted to such an illusory entry which included that the company had sustained losses and in order to impress the bankers and to please the shareholders the entry was passed into the profit and loss account. The Tribunal on the facts was satisfied with the explanation. This was a finding of fact which had not been challenged by the Revenue as perverse nor was the finding of the Tribunal demonstrated to be erroneous either in fact or in law. When the Tribunal was satisfied that the entry did not represent any real income or any real receipt of money, there was no question of its being taxable. Refer, CIT .v. Kusum Products Ltd, 361 ITR 632.

·         Amount received under sugar incentive scheme for setting up new unit or expanding existing unit was capital receipt. Refer, CIT .v. Dhampur Sugar Mills Ltd.

·         Non-compete fees received prior to insertion of s. 28(va) is capital receipt/ Assessee had entered in to agreement for sale of property to lessee. Sale agreement provided for forfeiture of thirty lakh rupees. Amount forfeited upon termination of agreement for sale of property to lessee is revenue receipt. Refer, CIT .v. Wintac Ltd, 360 ITR 614.

·         Subsidy received by subsidiary of Government company from its holding company to protect capital investment of parent company is capital receipt. Refer, CIT .v. Handicrafts and Handlooms Export Corporation of India ltd, 360 ITR 130.

·         While confirming the order of CIT(A) , the Tribunal held that amount received on account of forfeiture of amount due to non-payment towards warrants issue has to be treated as capital receipt and since the assessee has also transferred it to the capital reserve account in the balance sheet the amount cannot be taxed as income of relevant financial year. Refer, Dy. CIT .v. CNB Finwiz Ltd, 159 TTJ 146.

·         Subvention payment received by the assessee from parent company to make good the loss and to see that company is run more profitably constituted revenue receipt. Refer, CIT .v. Siemens Public Communication Networks Ltd, 98 DTR 151.  

·         Subvention assistance from holding company to recoup anticipated losses of the assessee constituted capital receipt not chargeable to tax. Refer, CIT .v. Deutsche Post Bank Home Finance Ltd, 98 DTR 144.   

·         Retention money received, after TDS, but subject to bank guarantee, is not chargeable to tax as income till all conditions are satisfied. Refer, Amarshiv Construction Pvt. Ltd. v. DCIT, Gujarat HC.

·         The Tribunal held that subsidy received by assessee on account of exemption from Sales tax, entry tax and electricity duty would be revenue receipt and not capital receipt. Refer, ACIT .v. Jindal Steel & Power Ltd, 145 ITD 277.

·         Compensation received by assessee for breach of agreement is capital receipt and not capital gains or casual and non-recurring receipt. S. 115JA was held not applicable to capital receipts. Refer, Parle Soft Drinks P. Ltd. .v. JCIT, 27 ITR 663.

·         Realisation of carbon credit was to be considered as capital receipt. Therefore the addition was  deleted. Refer, Ambika Cotton Mills Ltd. v. DCIT, 27 ITR 44.

·         The assessee sold a profitable running retail business to a new company. The amount received as noncompete fee prohibiting assessee from carrying on competing business in retail capital receipt. Refer, CIT .v. Spencers and Co. Ltd, 359 ITR 612.

·         In course of assessment, Assessing Officer noted that assessee sold plots of land on heavy premium which was not disclosed in its books of account. He thus added certain amount to assessee's income on protective basis. Simultaneously, substantive assessment of said amount was also made in case of AOP on ground that AOP consisting of nine persons including assessee had actually received premium and appropriated same to themselves. Commissioner (Appeals) as well as Tribunal took a view that when amount of premium had been added to income of AOP on substantive basis, protective assessment of same in hands of assessee was not sustainable. High Court confirmed the order of Tribunal. Refer, CIT .v. Teachers Housing Cooperative Society, 219 Taxman 68.

·         Since money was kept in current account of bank, there was no question to earn interest and, thus, notional addition was to be deleted. Refer, CIT .v. U.P. Rajya Vidyut Utpadan Nigam Ltd.  218 Taxman 153.

·         From the subsidy scheme, it emerged that subsidy though computed in terms of sales tax deferment or waiver, in essence was meant for capital outlay expended by assessee for set up of unit in case of a new industrial unit and for expansion and diversification of an existing unit. Also, it was available only to a new industrial unit or to a unit undertaking expansion or diversification. Therefore, the same was a capital receipt. Refer, DCIT .v. Munjal Auto Industries Ltd, 218 Taxman 135.

·         Tribunal held that in subsequent year the Assessing Officer himself has accepted that the assessee is an amateur cricketer and not a professional cricketer, there was no justification to hold that during the years relevant to A. Ys. 1992-93 and 1993-94 the assessee was a professional cricketer. In case of other cricketers the appellate authorities and the courts have decided the issue in favour of assessees. Tribunal directed the Assessing Officer to allow exemption to the assessee as per circular No. 447 dated 22-1-1986. Tribunal followed the decision of Bangalore Bench of Tribunal in the case of G. R. Vishwanath v. ITO (1989) 29 ITD 142 (Bang.) and decision of Delhi Bench of Tribunal in the case of Manoj Prabhakar in ITA No. 564 and others/Delhi/2004 and the circular No. 447 dated 22-1-1986. Refer, ACIT .v. Kapil Dev, 157 TTJ 686 (Delhi)(Trib.).

·         Since the lower authorities had considered claim of assessee vis-à-vis United Nations (Privileges and Immunity) Act, 1947, whereas, enactment which had to be applied was International Finance Corporation (Status, Immunities and Privileges) Act, 1958,the matter required a fresh look by Assessing Officer, and hence, was sent back. Refer, Redington (India) Ltd..v. ACIT, 59 SOT 152.

·         Diversion of sale proceeds of property held as stock-in-trade towards discharge of loan liability–loan borrowed on capital account–neither be claimed as deduction nor can be allowed as revenue expenditure. Refer, Swan Energy Ltd. v. Addl. CIT, 90 DTR 261.

·         The Tribunal held that where miscellaneous expenses were incurred by assessee-association in pursuit of its objects and it could not be said that some third parties were benefited by incurring these expenses by assessee, status of mutuality could not be denied to assessee. Refer, Tiruchirapalli District Bus Operators Association v. Dy. CIT, 144 ITD 382.

·         The deposits were received by the assessee were neither collected ‘as sales tax” nor were they collected ‘by way of tax” .They were towards possible levy of sales tax on packaging charges and freight. Amounts to be returned if sale tax were not levied .Deposit cannot be assessed as trading receipt. Refer, Dalmia Cement (Bharat) Ltd. v. CIT, 357 ITR 419.

·         When a mutual concern invests its surplus funds or makes deposit in bank, return or interest on suchinvestment/deposits will not be covered by character of mutuality and such an amount will be liable to tax. Refer, Dy.DIT v. Societe International De Telecommunication, 139 ITD 328.

·         Capital or revenue-Non-compete fee-Capital receipt. The sole and main business or revenue earner i.e. merchant banking has been discontinued. And Amount received by assessee as non-compete fee for not carrying on merchant banking activities for a  period of three years was to be regarded as capital receipt and thus same was not liable to tax. Refer, IGFT Ltd. v. ITO, 144 ITD 57.

·         Money received by assessee from society under an agreement entered into between developer, society and members as consideration was payable to members by developer for transfer of respective entitlements of TDR of members could not be taxed as dividend in hands of assessee on the grounds of 'principle of mutuality' between society and its members. Refer, ACIT v. IGE India Ltd., 58 SOT 62.

·         Assessee was a State Government Undertaking and was only acting as nodal agency for receiving funds from Central as well as State Governments and disbursement of funds for development and infrastructure projects as per directions of Government from time to time. The Assessee earned interest on funds so advanced for projects and such interest was again invested in various development projects as per Government instructions. For relevant assessment year, the Assessing Officer added the accrued interest on the funds lent by the assessee on soft terms to local bodies andMega City/IDSMT funds programme to the assessee's income. On appeal, CIT(A) deleted the addition holding that interest on IDSMT fund would not be taxable income. The ITAT held that Interest earned is again utilized for implementation of the mega-city scheme, the same cannot be treated as income of the assessee. Refer, Tamil Nadu Urban Finance & Infrastructure Development Corporation Ltd. v. ACIT, 58 SOT 53(URO) (Chennai)(Trib.).

·         Subsidy received under a scheme clearly mentioning that it was given as special incentive for boosting  mega investments in the state was a capital receipt. Refer, Ford India P. Ltd. v. DCIT, 25 ITR 456.

·         Amount retained to ensure satisfactory performance of contract cannot be held to accrue. Retention money could not be said to have accrued to assessee, and therefore, this amount did not represent assessee's accrued income. Refer, DIT (IT) v. Ballast Nedam International, 355 ITR 300.

·         Where the loan taken was utilised for acquiring a capital asset, waiver of payment of such loan being in nature of capital receipt could not be subjected to tax. Refer, CIT v. Softworks Computers (P.) Ltd., 216 Taxman 219.

·         Sale proceeds of agricultural land received by assessee from her brother in accordance with direction given by her late father in his will could not be treated as income of assesse. Refer, CIT v. Neera Bhandari, 216 Taxman 88.

·         To determine the character of subsidy in hands of recipient, whether revenue or capital, the purpose of the subsidy is to be considered and the source of fund and mechanism of giving subsidy are immaterial. Incentive, in form of sales tax waiver/deferment was not meant to give any benefit on day-to-day functioning of business or to make it more profitable; but was principally aimed to cover capital outlay of assessee for undertaking modernization of existing industry, it was capital in nature, and thus, not taxable. Refer, CIT v. Birla VXL Ltd., 215 Taxman 117 (Guj.)(HC).

·         Subsidy received from Singapore company for meeting specific expenditure pre-approved by Singapore company--Sums remitted with specific directions that money to be spent only for specified purposes and amount remaining unspent to be held by assessee in trust for and on behalf of Singapore company--Unutilised amount not credited to profit and loss account of assessee but taken to balance-sheet as current liability--Unspent subsidy not income of assesse. Refer, Canon India P. Ltd. v. Deputy CIT (Delhi), VOL 24 PG 694.

·         The question before the Special Bench was “whether in the facts and circumstances of the case, the excise duty refund set off is a capital receipt.” “If the excise duty refund /set off is held to be revenue receipt, whether the said amount is to be included in the business profits for the purpose of deduction under section 80IB of the Income –tax Act.” The Special Bench held that refund of excise duty is to be treated as capital receipt in the hands of the assessee, which is not chargeable to tax. As the first question is decided in favour of assessee the second question was not decided. Refer, Vinod Kumar Jain v. ITO, 140 ITD 1(SB) (Asr.)(Trib.).

·         Sale tax subsidy from Government of Maharashtra under Sales Tax Subsidy Scheme of 1993 was held to be capital receipt not liable to tax. Refer, DCIT v. Indo Rama Textiles Ltd, 53 SOT 515 ( Delhi) (Trib.).

·         Assessee-institution which was formed by tenants of a building, was working for common interest of its members. It claimed tax exempt status on ground of mutuality. The Assessing Officer declined its claim. It was held that as long as services were rendered to members, even for a remuneration, same could be covered by principle of mutuality. Mere deduction of tax at source by members making payment could not lead to conclusion that receipt was taxable in nature. Thus, section 28(iii) had no application as it comes into play only when there is an ‘income’ derived by assessee but no income can be arise in case of mutuality. Refer, Belvedere Estates Tenants Association v. ITO, 139 ITD 675.

·         Assessee-bank maintained Nostro and overseas accounts with head office and branches outside India. It was held that on principle of mutuality neither interest income was taxable nor interest expenditure was allowable. Refer, Asst. DIT (IT) v. Credit Lyonnais, 139 ITD 681.

·         Court found that the department having not called upon the assessee to produce the relevant documents viz. Letter of offer made by JN Ltd., resolution of the board of directors of the assessee company when they applied for fully convertible debentures of that company, terms and conditions of issue of debentures, pleadings in the suit, resolution of the board of directors whereby they agreed to give up their right to take over JN Ltd. for the agreed compensation, etc., the impugned order of the High Court is set aside and the matter relating to the taxability of the compensation received by the assessee for giving up its right under the SEBI Takeover Code is remitted to the Assessing Officer for de novo consideration. Refer, CIT v. Vasudhara Holdings Ltd, 210 Taxman 568.

·         The Court held that there was no diversion of income by overriding title as regards the amount appropriated by the assessee lessor towards the sinking fund which is to be used for discharging its obligations under the lease agreements as assessee had complete control over these funds and it has claimed depreciation in respect of the plant and machinery and other equipments purchased by utilizing the sinking fund for extending the facilities to the lessees. Refer, M. Visvesvaraya Industrial Research and Development Centre vs. CIT, 79 DTR 387.

·         Assessee, banking company registered in Korea, was carrying on banking business in India through its branch at Mumbai. As a part of its banking business, assessee claimed to have invested in securities which were categorized as ‘available for sale’. As per accounting policy consistently followed, net appreciation in value of said securities was not recognized as income by assessee on ground that it represented unrealized and notional profits. Assessing Officer treated such net appreciation in value of securities as income of assessee liable to tax. The said addition was deleted following order passed by Tribunal in case of Dy. CIT (International Taxation) v. Chohung Bank [2010] 126 ITD 448 (Mum.). Refer, Shinhan Bank v. Dy.DIT, 54 SOT 140 (Mum.)(Trib.).

·         When a mutual concern provides goods and services to non-members also and, some profit flows from said transactions, it is chargeable to tax. (AY 1996-97) / When a mutual concern invests its surplus funds or makes deposit in bank, return or interest on such investment/deposits will not be covered by character of mutuality and such an amount will be liable to tax. Refer, Dy.DIT v. Societe International De Telecommunication, 139 ITD 328 (Mum)(Trib.).

·         Compensation received from landlord for delay in actual delivery of leased premises is not taxable as revenue receipt. Refer, American Express (India) (P) Ltd. v. JCIT, 79 DTR 127.

·         Interest paid to the head office/branches of the assessee bank by the Indian branch, cannot be taxed in India being payment to self which does not give rise to income that is taxable in India as per the domestic law or even as per the relevant tax treaty. Refer, BNP Paribas Sa v. Dy. DIT, 9 DTR310 (Mum.)(Trib.).

In case you have any further clarification, feel free to contact me at taxbymanish@yahoo.com or else you can view more articles & news related to Indian tax & finance at http://taxbymanish.blogspot.in/.

­


No comments:

Switzerland revokes unilateral MFN benefit under India-Switzerland Tax Treaty w.e.f. 1 January 2025

  This Tax Alert summarizes a recent Statement issued by Switzerland Competent Authority [1] (Swiss CA) on 11 December 2024 (2024 Statement...