TAX BY MANISH

Friday, 30 December 2016

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.

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

Saturday, 17 December 2016

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

Sunday, 27 November 2016

Tax Notices

In case you are in receipt of any tax notices and you are looking for professional assistance please contact us for the same via e mail at taxbymanish@yahoo.com.

Few Important Points on Revised GST Model Law.

Right from the beginning of talks relating to GST, we all were hoping that with the introduction of GST, there will be “One Nation, one Tax” or at least “One Nation, Few Rates”. But the actual scenario is quite different. GST Council has already decided that there will be 4 rate slab i.e. 5%, 12%, 18%, and 28%. In addition to this there will be a new cess with the name “GST Compensation Cess” for first 5 years on some specified items. Now since government has come out with relevant draft law on this 26^th day of November, 2016, let’s understand this new levy of cess.

CBEC releases revised version of GST Model Law and new draft of State Compensation law

The Draft GST model law was released on June 14, 2016.On Nov. 26, 2016 the CBEC has released the revised version of draft GST model law after considering the suggestions of the stakeholders. It has also released the draft law for compensating the States. The Central Govt. would compensate the States for the revenue loss in the first five years of GST implementation.

Shell Global Solutions International BV vs. DDIT (ITAT Ahmedabad)

Interplay between Article 9 of the DTAA and Transfer Pricing law in the Act explained. While Article 9 is an enabling provision, the TP mechanism under the domestic law is the machinery provision. There is no occasion to read Article 9 as confined to enabling ALP adjustment in respect of only domestic entities. The mere fact that the OECD Commentary etc give examples related to economic double taxation situations does not imply that the Article 9 (1) cannot be applied to other situations

Important Case Laws Relating To Taxability Of Black Money (Demonetisation) & Levy Of Penalty Thereon

1. S. 4: Income – Chargeable as – Assessee’s books actually showing a cash balance of above Rs.38,000 as on the day immediately preceding the date of demonetisation. – In the absence of material before the Tribunal, it could not have held that only 22 out of 28 high denomination notes

Maharashtra Govt. releases 2013-14 Computerized Desk Audit reports; No Mate's receipt for containerized

MVAT:

Maharashtra Govt. releases Computerized Desk Audit (CDA) reports for the period 2013-14 after analyzing electronic data pertaining to e-Returns, audit reports in Form e-704 and annexures thereof uploaded by all dealers; Dealers can submit compliance electronically; Audit parameters, related tax liability and facility for entering interest payments have been made available to the dealer; Compliance should be made on or before December 20, 2016

Tax Due Date Reminder - December 2016

Sr No	Due Date	Related to	Compliance to be made
1	06.12.2016	Service Tax	Payment of Service Tax for the Month of November 2016
2	07.12.2016	TDS/TCS (Income Tax)	· Deposit TDS for payments of Salary, Interest, Commission or Brokerage, Rent, Professional fee, payment to Contractors, etc. during the month of November 2016. · Deposit TDS from Salaries deducted during the month of November 2016 • Deposit TCS for collections made under section 206C including sale of scrap during the month of November 2016, if any • Deliver a copy of Form 15G/15H, if any to CCIT or CIT for declarations received in the month of November 2016, if any
3	20.12.2016	VAT	Payment of VAT & filing of monthly return for the month of November 2016 ( TN, KAR & TEL).
4	15.12.2016	Income tax	Payment of Advance tax for the Corporate and Non Corporate assesses –Amount not less than 75% and 60% of advance tax respectively.

IBBI Notifies Insolvency Professionals Regulations 2016

I am pleased to share that the Insolvency and Bankruptcy Board of India has notified the following regulations on 23/11/2016: The same shall come into force from 29/11/2016.

Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016

http://www.mca.gov.in/Ministry/pdf/IBBIRegulation_25112016.pdf

The above regulations also consists of stipulations pertaining to Registration of Insolvency Professionals (Members of ICAI/ICSI/ICMA/Bar Council etc) and Insolvency Examinations.

For viewing and downloading the complete set of notifications pertaining to the Insolvency and Bankruptcy Code, 2016 till date, one may use the following link:

http://www.mca.gov.in/MinistryV2/insolvency+and+bankruptcy+code.html

Friday, 28 October 2016

HAPPY DHANTERAS

Saturday, 15 October 2016

Assistance required for handling Income Tax Notice.

In case you are in receipt of any income tax notice and you are looking for any assistance to deal with income tax department in this respect, then you can avail our professional services in this regard. Please sent your request to taxbymanish@yahoo.com or call us at 81053-69696.

Assistance required for handling Income Tax Notice.

Sunday, 18 September 2016

Assistance in handling Income tax notice

Monday, 15 August 2016

TAXBYMANISH NOW HAVING 2 MILLION HITS

Dear Patron

Jai Hind.

Its just before the 5 year ago, on the Independence day only, a revolution was being started to share the knowledge on tax in the name of TAXBYMANISH.BLOGSPOT.IN and today because of your kind support and love the effort started 5 years ago had crossed 2 Million Hits. The blog now is having more than 6000 post and being accessed all over the world and able to assist tax professionals with updating tax knowledge.

The blog now continuing its tax knowledge sharing services now in fresh and advance portal at https://taxofindia.wordpress.com/ and within a short span of time having thousands of followers. You too can register your email at the portal to get daily tax alert which will keep you updated with tax knowledge.

Also we are thankful to all of you for your kind response towards all the E- books published by us in the last couple of years. The books published by us are very much assisting tax professionals in their routine compliance and advisory work. In case you want e book of our publication, please drop an email at taxbymanish@yahoo.com.

We once again thankful to you for your blessings and support which help us to reach such a milestone.

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HAPPY INDEPENDENCE DAY.

Thursday, 23 June 2016

CELEBRATING 700TH POST OF TAX OF INDIA.

https://taxofindia.wordpress.com/2016/06/23/arrest-of-tax-defaulters-cbdt-clarifies/

Wednesday, 11 May 2016

Revised India Mauritius DTAA Agreement.

Click the link below to read the complete article.

https://taxofindia.wordpress.com/2016/05/11/revised-india-mauritius-dtaa-agreement/

Friday, 6 May 2016

Changes in the Finance Bill 2016 as passed by the Lok Sabha

Please click the link below to get the access to complete article.

https://taxofindia.wordpress.com/2016/05/05/changes-in-the-finance-bill-2016-as-passed-by-the-lok-sabha/

Thursday, 5 May 2016

Procedure for TCS/ TDS return filing in the ITD e-filing portal

The new change of E TDS return is very important. Please click the link below.

https://taxofindia.wordpress.com/2016/05/05/procedure-for-tcs-tds-return-filing-in-the-itd-e-filing-portal/

SN	Items	Included in Turnover	Excluded in Turnover
1	Foreign currency transactions	CIT v. Tata Elxsi Ltd. 382 ITR 654
2	Income from sale of scrap, export incentives, interest income and gains on exchange rate fluctuation	Wipro Ltd. v. Deputy CIT 382 ITR 179 Watson Pharma P. Ltd. v. Deputy CIT VOL 37 PG 97 GE BE P. Ltd. v. Asst. CIT 371 ITR 32
3	Only freight, telecommunication charges or insurance attributable to delivery of computer software outside India or expenses incurred in foreign exchange in providing technical services outside India to be excluded from total turnover. Also Travelling expenses.		CIT v. Hewlett Packard Global Soft Ltd 381 ITR 99 Aptean Software India P. Ltd. v . ITO VOL 41 PG 246 Cypress Semiconductor Technology India P. Ltd. v. Deputy CIT VOL 39 PG 468 Tektronix Engineering Devt. India P. Ltd. v. Deputy CIT VOL 39 PG 212 ACIT v.Think Soft Global Services (P.) Ltd 34 ITR 633
4	Lease line charges excluded from export turnover--To be excluded from total turnover		Sun Life India Service Centre P. Ltd. v. Deputy CIT-VOL 43 PG 511
5	Travelling expenses incurred in foreign currency to be reduced both from export turnover and total turnover		iNautix Technologies India P. Ltd. v. Asst. CIT - VOL 42 PG 324 McAfee Software (India) P. Ltd. v. Dy. CIT VOL 40 PG 574
6	Expenses excluded from export turnover to be excluded from total turnover		Deputy CIT v . WS Atkins India P. Ltd. VOL 41 PG 397 Dy. CIT v . Timken India Manufacturing P. Ltd. VOL 41 PG 208 e4e Business Solutions India P. Ltd. v . Dy. CIT VOL 41 PG 90 Torry Harris Business Solutions P. Ltd VOL 40 PG 256
7	Profits arising out of fluctuation of rates of foreign exchange--Form part of export turnover-	Universal Precision Screws v. Asst. CIT VOL 38 PG 233
8	Sale of scrap--Proceeds not includible in turnover		Universal Precision Screws v. Asst. CIT VOL 38 PG 233