CALENDAR 2017

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Whether annual value of every second property owned by individual, which remained vacant, would be assessable u/s 23 - YES: HC

THE ISSUE IS - Whether the annual value of every second property owned by an individual, which admittedly remained vacant throughout the year would be assessable u/s 23(1)(a). YES IS THE VERDICT.

Harmonised System Nomenclature 2017 for imports / exports effective from January 1, says CBEC

CBEC notifies implementation of changes from WCO Harmonized System Nomenclature 2012 version to 2017 version w.e.f. January 1, 2017; New version, as notified vide Sections 141 and 146 of Finance Act 2016, includes 233 sets of amendments, divided as follows - agricultural sector 85, chemical sector 45, wood sector 13, textile sector 15, base metal sector 6, machinery sector 25, transport sector 18, and other sectors 26; Directs importers, exporters and CHAs to ensure classification of goods in accordance with HSN 2017 while filing Customs declarations for goods to be imported / exported from January 1st; Customs RES software providers shall also equip their RES packages in line with new version for smooth implementation : CBEC

CESTAT : Affirms taxation of catering services rendered by Co.'s co-operative society to employee-members

CESTAT affirms taxation of catering services provided by assessee, a registered cooperative society, from the premises of L&T to its employees u/s 65(105)(zzt) of Finance Act; Notes that L&T has statutory obligation under Factories Act to provide culinary service and in this regard, established a cooperative society comprising of employees as also company itself for operating the canteen, and consideration for meal was paid in tandem by consumer and employer; Whether food articles were provided free of cost or at subsidized rates or at market prices, was a matter of labour-employer negotiations and it was clear that without the concurrence of L&T, assessee could neither engage in activity of running canteen nor decide rates of food articles or composition of individuals to be served; Holding assessee as ‘service provider’, CESTAT found that it operates from campus of L&T, thereby satisfying all requirements of taxability u/s 65(105)(zzt); Relies on coordinate bench ruling in Alfa Laval (India) Ltd Employees Co-operative Consumers Society case while rejecting assessee’s claim of mutuality, opines that society and its membership was not germane to contract between L&T and assessee for engaging latter as caterer : Mumbai CESTAT

Questions ITAT's 'mechanical adherence' to Galileo ruling on 15% profit attribution

Delhi HC allows Revenue’s appeal challenging ITAT order attributing 15% of assessee’s (USA based limited partnership concern, engaged in online airline booking services) income to India relying on co-ordinate bench ruling in Galileo International Inc; ITAT had held that assessee's operations in India constituted a PE under Article 5 of India-USA DTAA while attributing 15% income to Indian operations; Observing that Revenue's challenge is to ITAT's "mechanical adherence" to attribution rate of 15% in Galileo ruling, HC notes that "the AO had based his conclusions and determined the income based upon figures furnished by the assessee, as is apparent from a plain reading of the order"; Thus, rules that the ITAT “ought not to have disturbed that order, without a finding” and accordingly directs ITAT to render specific findings on the questions urged before it:HC 

ITAT : Rejects exclusion of strategic investments in Sec 14A-disallowance computation, reverses CIT(A) order

Mumbai ITAT rules against taxpayer & reverses CIT(A), denies relief from Sec 14A in respect of strategic investment made by assessee (a cooperative bank) in its subsidiary company;  Observes that the statute does not grant any exemption to strategic investments which are capable of yielding exempt income for arriving at Sec. 14A disallowance; Thus holds that any investment including strategic investments in subsidiary company as well as in other securities which are capable of yielding tax-free income (by way of dividend) shall be included for the purpose of computing disallowance u/s 14A; Relies on Karnataka HC ruling in United Breweries, Bombay HC rulings in Reliance Utilities and HDFC Bank Ltd. and coordinate bench ruling in Uma Polymers Ltd. ; Separately holds that assessee being a cooperative society is not subject to Sec. 40A(2) disallowance in respect of payment towards software and data entry services to its related enterprise, relies on Bombay HC ruling in Manjara Shetkari Saharakari Karkhana Ltd. in this regard:ITAT 

CESTAT: Disallows credit of 'outward freight' not included in assessable value; HC ratios inapplicable

CESTAT disallows CENVAT credit of tax paid on outward freight not forming part of ‘assessable value’ of manufactured goods; According to CESTAT, accepting assessee’s contention that value of service claimed as "input service" is not includible in assessable value, would result in availment of undue privilege of credit balance by paying lower tax and retention of tax recovered from customer, which is clearly not intent of CENVAT Credit Rules (CCR); CCR do not purport to be an exemption mechanism, but rather govern the manner in which a fund of ‘non-money’ is acknowledged as means of discharging tax/duty obligation and regulates its operation: Stating that, “foundation of Cenvat Credit Rules, 2004 is inherent relationship with tax liability for without a tax liability on output goods or services, the Rules are merely academic”, CESTAT holds that quantum of credit is linked to ingredients that constitute value for tax liability; Rejects assessee’s reliance on various HC rulings such as ABB Ltd. and Parth Poly Woven Pvt Ltd, stating that they do not pertain to determination of dispute whether credit availed was in confirmity with CENVAT Credit scheme, and on other hand, relies on decision of Maharashtra Scooters Ltd. to conclude that tax paid on outward freight is unavailable to offset duty liability on output goods : Mumbai CESTAT

CBDT issues further clarifications on Direct Tax Dispute Resolution Scheme, 2016

The Circular addresses some of the ambiguities and concerns of taxpayers in connection with the Scheme. Most clarifications, issued at the fag end of the Scheme period, largely highlight the limitations of the Scheme as to the ineligibility of penalty dispute in relation to tax withholding defaults and search assessment cases, and the requirement to withdraw writ petition challenging the constitutional validity of retrospective amendment.

Allahabad HC provides interim stay on levy of entry tax on e-commerce transactions post Constitutional amendment

This Tax Alert gives an update on the recent decision of the Allahabad High Court (HC) wherein a writ petition was filed challenging the legality of the levy and collection of Entry tax on goods brought into local areas of Uttar Pradesh (UP) through online purchase and e-commerce transaction.

Three Imp Verdicts On Taxation Of Charities + Speculation Loss U/s 73 + Taxability Of Bogus Purchases

The Tribune Trust vs. CIT (P&H High Court)

S. 2(15)/11: Impact of the amendment to the definition of "charitable purpose" in s. 2(15) by insertion of a proviso by the Finance Act, 2008 and whether it supersedes the verdicts in Loka Shikshana Trust 101 ITR 234 (SC), Surat Art Silk Cloth Mfrs. Association 121 ITR 1 (SC) etc explained

Whether CNG in its compressed form having distinct identity from that of natural gas, which acquires trait of 'manufacture', is eligible for deduction u/s 80IA - YES: HC

THE ISSUE IS - Whether when it is clear that compressed natural gas in its compressed form has a distinct identity and character and use, which acquires the trait of 'manufacture', in such case deduction u/s 80IA cannot be denied. YES IS THE VERDICT.  

SC: Admits SLP against HC-ruling holding Jindal Group's transaction as colourable device

SC admits assessee’s (Abhinandan Investment Ltd., a Jindal group company) SLP against Delhi HC ruling for AY 1992-93 wherein HC had held that the transaction of renunciation of rights for subscribing to partly convertible debentures (‘PCDs’) of JISCO (another Jindal Group company) was a colourable device to contrive artificial loss; Assessee had renounced rights in PCDs in favour of another group company (‘JSL’) at a significantly lower price than the market value resulting in a significant loss, such loss set-off claim was denied by the HC by regarding it as only a notional loss; Taking note of peculiar facts whereby assessee sold JSL shares during relevant year resulting in substantial capital gains, and at the same time undertaking a transaction of renunciation of rights resulting in huge losses, HC had opined that “In order to avoid paying the tax, the investment companies including the Assessee entered into transactions for renunciation of rights with related companies of the same group. These incestuous transactions were for no other business purpose but to contrive a loss in the hands of..assessee who had incurred a tax liability on account of the gains made”; Relying on SC ruling in Azadi Bachao Andolan and Vodafone International Holding BV, HC had held that “in order to examine whether a transaction is a device or a subterfuge the answer to the question whether the transaction has any reasonable business purpose would be a vital consideration”; HC has thus ruled that the transactions were implemented by the assessee for no commercial purpose but to create a tax loss while ensuring that the rights remained within the Jindal Group  

ITAT: Payments by SMS-provider to telecom-operator towards connectivity charges not royalty; Sec. 194J inapplicable

Mumbai ITAT reverses CIT(A)’s order for AY 2011-12, payments made by assessee (a bulk SMS provider) to domestic telecom operator towards connectivity charges not taxable as royalty within the meaning of Sec. 194J; Revenue held that TDS u/s 194J was applicable on payments on the ground that transmission of bulk SMS was pursuant to “use of equipment” of the telecom operator in view of explanation 6 to Sec. 9(1)(vi) [bought with retrospective effect by Finance Act, 2012], as against TDS u/s 194C applied by the assessee and thus regarded assessee as "assessee in default" for short-deduction of TDS; Notes that the payee created customers account and provided IP address, user name and password to the assessee, also notes that the assessee integrated such details in its application for transmitting bulk messages to the telecom operator; Further notes that the payments received by the assessee from its customers, including the IT Department were subject to TDS u/s 194C and that assessee neither had any access/control over any of the connectivity facilities/ server/network of the telecom operator; Thus rules that agreement entered into between the assessee and the telecom operator was in the nature of works contract as “it was kind of standard connectivity facility which has been provided by Telecom Operator and nothing else”:ITAT

The ruling was delivered by ITAT bench of Shri. Amit Shukla and Shri. Ashwani Taneja. Mr. Mihir Naniwadekar argued on behalf of the assessee while Revenue was represented by Mr. Prakash Mane.

ITAT: Allows depreciation on goodwill claimed during assessment sans filing revised return

Ahmedabad ITAT dismisses Revenue’s appeal for AY 2010-11, allows depreciation on ‘goodwill’ claimed by the assessee – company during the course of assessment proceedings vide a revised computation of income without filing revised return of income; Notes that pursuant to the scheme of arrangement approved by Gujarat HC in AY 2008-09, assessee had acquired the consumer products division and other related intangible assets of the such business which was accounted for as “goodwill” in its books of accounts; Pursuant to subsequent SC ruling in Smifs Securities Ltd., assessee claimed depreciation on goodwill arising on amalgamation which was denied by the AO on the ground that assessee did not file revised return of income to make a “rightful” claim; ITAT follows Bombay HC ruling in Pruthvi Brokers and Shareholders wherein it was held that the AO is bound to entertain rightful claim of deduction made otherwise than by filing a revised return of income; Separately applying the principle of consistency also allows depreciation on non-compete fees, relies on coordinate bench ruling  Medicorp Technologies Pvt. Ltd. and Pune ITAT ruling in Serum Institute of India Ltd., also takes note of Revenue’s reliance on Delhi HC ruling in Sharp Business System:ITAT

The ruling was delivered by ITAT Bench of Shri. R.P Tolani and Shri. Manish Borad. Mr. M. M. Patel with Jigar M. Patal argued on behalf of the assessee while Revenue was represented by Mr. R.I Patel.

ITAT : Allows indexation benefit on long-term capital gains for working MAT liability u/s 115JB

Bangalore ITAT allows assessee’s (a Government undertaking) appeal for AY 2008-09, holds that long term capital gains (‘LTCG’) arrived at by reducing indexed cost of acquisition from asset’s sale proceeds to be considered for computing MAT liability u/s 115JB;  Observes that clause (ii) to Explanation to Sec. 115JB provides that amount of income u/s 10 [other than provisions of Sec. 10(38)/ 11/ 12], credited to P&L a/c shall be reduced from book profits for MAT computation; Further observes that the term 'any income’ used in Sec. 10(38) refers to only the amount of LTCG as computed u/s 48 which provides for computation of capital gains after the reduction of cost of acquisition; Thus rules that the “benefit of indexation of cost of acquisition should be given to the assessee while computing long term capital gain for the purpose of section 115J8 of the Act”, relies on SC ruling in Ajantha Pharma  and coordinate bench ruling in M.S.R & Sons Investments Ltd.; Separately on noting that the assessee was set-up for infrastructure development allows contribution to Chief Minister's Relief Fund (towards development and reconstruction of infrastructure facility in Karnataka) as business expenditure u/s 37 , relies on SC ruling in Sri Venkata Satyanarayana Rice Mill Contractors Co. in this regard:ITAT 

Vodafone-like Sec 9 retrospective amendment cases covered by Direct Tax Dispute Resolution Scheme, 2016

CBDT issues 8 FAQs on the Direct Tax Dispute Resolution Scheme, 2016 (‘Scheme’); CBDT clarifies that assessee would be eligible to opt for the Scheme in case where an

CBDT Directive Reg Reporting Cash Transactions Under Rule 114E Of Income-Tax Rules, 1962

The CBDT has issued a Press Release dated 22nd December 2016 in which it has provided important clarification regarding the requirement to report cash transactions under Rule 114E of the Income–tax Rules, 1962.

Format of a reply of Income Tax Notice.

Case Notice Reply 142(1) - My actual reply for notice under section 142(1)

 To the audience ,Note a few particulars
Assesse - Individual         FY 2010 11   AY - 2012 13    Received a notice under section 142(1)
----Just to let you know that notices under section 143(2) and 142(1) are notices send by the assessing officer to assess true income for the assee if he is not satisfied of the income declaration by the assesse 

NEW YEAR WISHES

Whether after amendments vide FAs, 2000 & 2003, colour of Section 10A changed from exemption to provision of deduction - YES: SC

THE question before the Apex Court is - Whether after amendments vide FAs, 2000 & 2003 the colour of Section 10A changed from exemption to provision of deduction. YES is the verdict.

The broad questions before the Apex Court are:

HC : E-commerce sales envisaging goods movement from one state to another, constitutes 'inter-state sales'

HC grants relief to WS Retail, sale of mobile phones, computer spare parts and personal healthcare products via online portal, qualify as an ‘inter-state sale’, not liable to local sales tax / VAT; Notes assessee’s contention that for purpose of delivery of goods within Union Territory of Puducherry, assessee installed a delivery hub in Puducherry - E-Kart logistics, which acts as a sorting

Lays down law on loss set-off for Sec 10A/10B units in Yokogawa case

SC rules upon issue of set-off of losses of Sec. 10A/10B units, non- eligible units while computing benefit allowable u/s 10A/10B in Yokogawa India and other cases; Holds that Sec. 10A/10B, post amendment by Finance Act, 2000 w.e.f. April 1, 2001, is a 'deduction provision' and not an 'exemption provision' even though it appears in Chapter III dealing

PROSECUTIONS" Under Income Tax Act

There are some lapses on the part of the assessee which are punishable through the courts. Whenever Income-tax department feels that a particular person has committed a particular offence, a wrongful act or he is guilty of a crime, the department will initiate the proceedings before a magistrate. The proceedings, before the magistrate shall be heard under the Criminal Procedure Code and onus to prove the guilt before the magistrate shall fall, upon the department. The assesee is considered to be an innocent person unless proved otherwise. Punishment given by the department is of monetary nature whereas for some specific offences punishment can be in the shape of imprisonment. But for that, the income-tax authorities have to launch the proceedings in a court of law The following are cases where the person commits offence under the Act, making the guilty persons liable to be punished by the court.

HC : Reverses AAR, Formula One Championship circuit constitutes fixed-place PE

Delhi HC reverses AAR order in the case of Formula One World Championship Ltd. (‘FOWC’ / ‘assessee’, a UK tax resident Company), holds that assessee constituted a fixed place PE in India under Article 5(1) of India-UK DTAA through the international

Whether disallowance of prior period expenditure is jutified, when same was accepted and allowed for previous years in case of other assessee's - NO:HC

THE ISSUE IS - Whether disallowance of prior period expenditure is jutified, when the same was accepted and allowed for previous years in case of other assessee's. NO IS THE VERDICT.

Facts of the case:

Whether Section 50C can have retrospective application in case of transfer of property prior to Oct 01, 2009 - NO: ITAT

THE ISSUE IS - Whether Section 50C of I-T Act can have retrospective application in case of transfer of a property, if the transfer was made prior to Oct 01, 2009. NO IS THE ANSWER.

Facts of the case:

Latest e-Hand Book on Revised GST Law

The Central Government is targeting to implementation the new indirect tax system w.e.f. April 1st, 2017, its called GST.

"The revised drafts of the Model GST Law, iGST Law, GST Compensation Law have been uploaded on our website (Central Board of Excise and Customs). These laws will be considered by the GST Council on December 2-3 and finalized,"

The revised drafts of three Goods and Service Tax laws have been released after incorporating suggestions from stakeholders, the government said on Saturday. These will now be placed before the Goods and Services Tax Council in its next meeting on December 2 and 3.

Revised GST law containing :

• Revised Model CGST /SGST Law
• Revised IGST Law
• GST Compensation Cess Law
• GST Rules for registration, payment, return, refund and invoices.

To Download Latest Free e-Handbook on Revised GST Law Click Here