Friday, January 31, 2014

HC treats revised return of income as application for condonation of delay; allows legitimate tax refund

Revised return of income to be considered as application for condonation which consequently results in refund of legitimate taxes
The High Court held as under:
1)  The application of petitioner for condonation of delay under section 119(2)(b) was denied by adopting a very hyper technical view that it was made beyond 6 years from the date of the end of the assessment year 2004-05;

2)  In the instant case the revised return of income filed on 8 September, 2011 would be considered as application for condonation of delay and tax refund would be granted - Devdas Rama Mangalore v. CIT [2014] 41 508 (Bombay)

Thursday, January 30, 2014

De-facto ownership of asset to be considered for computing holding period of capital assets, rules HC

a)  The assessee, a Chartered Accountant, sold the property on 29.05.2008 for certain consideration. He worked out long-term capital gain and claimed exemption under section 54EC and section 54F;
b)  The assessing authority was of the view that the sale deed executed in favour of the assessee was on 27.02.2008 and he sold the property on 29.05.2008, i.e., within four months from the date of purchase and, therefore, the capital gains arising therefrom could not be construed as long-term capital gain;
c)  Accordingly, he disallowed the exemption claimed under Sections 54EC and 54F. On appeal the CIT(A) upheld the order of AO. Further, the Tribunal set aside said order. Aggrieved revenue filed the instant appeal
The High Court held in favour of assessee as under:
1)  For the purpose of computing 36 months holding period of a capital asset under section 2(42A), there is no requirement in section that holding period should only include the period for which assessee was the owner of the asset with a registered deed of conveyance conferring title on him;
2)  The words "held by the assessee" in section 2(42A) does not mean vesting of legal title in the property to the assessee;
3)  As Bangalore Development Authority allotted plot to assessee in 1988, due to legal disputes between it and the original owners of site, it cancelled the booking and allotted another plot in 2007 and that was also cancelled for same reason and fresh plot was allotted in 2008 and same was registered in assessee's name;

4) The consideration paid in 1988 was to be treated as consideration for the sale deed and capital gains resulting from plot sold in 2008, was long-term capital gains and eligible for benefits under sections 54F and 54EC – CIT v. A. Suresh Rao [2014] 41 475 (Karnataka)

Wednesday, January 29, 2014

PANs are issued without de-facto verification, these can’t solely divulge real identity of individuals

a)  On basis of some information from the Investigation Wing that assessee was identified as one of beneficiaries who had received bogus entries; notice under section 148 was issued to the assessee and it was required to furnish information in respect of persons who had been allotted shares;
b)  The assessee filed confirmation from the respective persons who had subscribed to the share capital;
c)  The Assessing Officer (‘AO’) held that the assessee had failed to discharge the onus in proving the identity of subscribers, genuineness of the transactions and the creditworthiness and, accordingly, made an addition in the hands of the assessee;
d)  The CIT (A) deleted the addition. Further, the Tribunal confirmed the said order. Aggrieved revenue filed the instant appeal.
The High Court held in favour of revenue as under:
1)  PAN is allotted on the basis of applications without actual de facto verification of the identity or ascertainment of the active nature of business activity;
2)  PAN is allotted as a facility to revenue to keep track of transactions and, thus, the PAN cannot be treated as sufficiently disclosing identity of the individual;
3)  The mere filing of share application was not enough as the said application was not an unimpeachable document and did not on its own prove the genuineness or authenticity of the transaction;
4)  Mere production of PAN or assessment particulars does not establish the identity of a person. The identification of a person includes the place of work, the staff and the fact that it is actually carrying on business and further recognition of the said company in the eyes of public;

5) Assessee had not been able to discharge the initial onus and had not been able to establish its identity and creditworthiness of the share applicants and the genuineness of the transaction. Thus, the assessee had not discharged the onus satisfactorily and the additions made by the AO were justified – CIT v. N Tarika Properties Investment (P.) Ltd [2013] 40 525 (Delhi)

Tuesday, January 28, 2014

No collection of CST at higher rate if rate of tax on Intra-State sales of same goods was reduced unconditionally

Where rate of tax on intra-state sale of Hydraulic Excavators was reduced by way of an unconditional exemption to 2 per cent, Inter-State sale of such goods without C-Form could not be charged to a higher rate, viz., 4 per cent and would be liable to tax at 2 per cent
The assessee was engaged in sales of Hydraulic Excavators and was paying tax at rate of 2 per cent on such sales as per Notification, dated 30-3-2000. The Department found that the assessee had made Inter-State sales of such goods and rate of tax on such Inter-State sales without C-Form was at 4 per cent, as per Notification dated 27-8-1992 and, accordingly, raised demand.
The High Court held assessee liable to tax at 2 per cent with the following observations:-
1.    Notification dated 27-8-1992 issued under section 8(5) of the Central Sales Tax Act, 1956 provided for rate of tax at 4 per cent on Inter-State sales without C-Form. However, Notification dated 30-3-2000 issued under section 15 of the Rajasthan Sales Tax Act, 1994, which was general and unconditional in nature, provided for exemption from tax and provided for rate of tax on said goods at 2 per cent without any condition as to furnishing of C-Form.

2.    Once rate of tax for Hydraulic Excavators was provided under Notification dated 30-3-2000 at 2 per cent, there was no occasion for assessee to obtain 'C-Form' so as to pay tax under section 8 of the Central Sales Tax Act, 1956, which was at 4 per cent.

3.    Hence, fact that sale was an Inter-State transaction and assessee had not furnished 'C-Form' was of no consequence.

4.    Since rate of tax was reduced to 2 per cent by way of exemption, notification dated 27-8-1992 had no application to case. Accordingly, the demand was set aside - Assistant Commissioner v. Telco Construction & Equipment Co. Ltd. [2014] 41 130 (Rajasthan)

Monday, January 27, 2014

Sec. 13 not violated if firm owned by trustee won tender floated by trust or when trustee got business advances

Where firm of managing trustee won construction bids on competitive basis and sum was advanced to said firm, neither section 13(2)(c), nor section 13(1)(d) was violated.
The Tribunal held as in favour of assessee as under:
1)  The Assessing Officer (‘AO’) declined to grant benefit of section 11, as in the present case construction of building had been carried out by the firm of a managing trustee and, thus, derived direct benefit from the assessee-trust;
2)  A perusal of section 13(2)(c) would show that the income or property of the trust or any part of it had be deemed to have been used or applied for the benefit of the person referred to in sub-section (3), if any amount was paid by way of salary, allowance or otherwise to any person referred to in sub-section (3) out of the resources of the trust for services rendered and the amount so paid was in excess of what might be reasonably be paid for such services;
3)  In the instant case, the AO had outrightly held that the assessee was not entitled to the benefit of section 11 without ascertaining the reasonableness of the amount paid for the services rendered;
4)  The construction contract had been awarded to the firm on the basis of open bid. Since the firm quoted lowest rates, the contract was awarded to the firm. Since the contract was awarded on competitive basis and the profit earned was reasonable, the provisions of section 13(2)(c) were not violated;

5) The CIT (A) had given a well reasoned finding that the sum advanced by the assessee to the firm was business advance. The amounts were advanced for the on-going construction work in the normal course of business activity. The order of CIT(A) was to be confirmed and the appeal of the revenue was to be dismissed – Dy. DIT(Exemptions) v. Sri Vekkaliamman Educational & Charitable Trust [2013] 40 478 (Chennai - Trib.)

Saturday, January 25, 2014

Central Excise Rule providing for interest rate in excess of rate specified in Excise Act is ultra vires: HC

Rule cannot provide for rate of interest in excess of that provided in section/Act itself; Rule 8(3) of the Central Excise Rules providing for interest at rate exceeding that provided in erstwhile section 11AB of Central Excise Act was held ultra vires
a)  On delay in payment of duty, the assessee discharged interest at rate of 2 per cent per month;
b)  Department argued that interest, as per rule 8(3), was to be paid at the rate of 2 per cent per month or Rs. 1,000 per day, whichever was higher and accordingly raised demand for differential interest;
c)  The assessee argued that rule 8(3) was ultra vires erstwhile section 11AB (now, section 11AA), as said rule provided for interest at rate exceeding rate provided in said section 11AB.
The High Court held in favour of assessee as under:
1)  In view of judgment of the Rajasthan High Court in Lucid Colloids Ltd. v. Union of India 2006 (200) ELT 377, the expression "or rupees one thousand per day, whichever was higher" in rule 8(3) ibid were invalid, being ultra vires the erstwhile section 11AB;
2)  Therefore, interest chargeable on delayed payment had to be only at rate of 2 per cent per month or 24 per cent per annum, as notified for purpose of erstwhile section 11AB;

3)  Thus demand for differential interest was to be set aside. - K.C. & Sons Appliances (P.) Ltd. v. Union of India  [2014] 41 177 (Gujarat)

Friday, January 24, 2014

Big blow to ill-gotten wealth invested in real estate; SC affirms seizure of asset acquired from illegitimate means

The Supreme Court held as under:
1)    To understand the exact nature of the forfeiture contemplated under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) it is necessary to examine the nature of the property which is sought to be forfeited and also the persons from whom such forfeiture is sought to be made. The Act is made applicable to five classes of persons specified under section 2;
2)    Of the five categories of persons to whom the Act has been made applicable, only one category specified under section 2(2)(a) happens to be of persons who are found guilty of an offence under one of the enactments mentioned therein and convicted;
3)    The other four categories of persons to whom the Act is applicable are persons unconnected with any crime or conviction under any law. Section 6 of the Act authorises the competent authority to initiate proceedings of forfeiture only if it has reasons to believe that all or some of the properties of the persons to whom the Act is applicable are illegally acquired properties?;
4)    It is well known fact that people carrying on activities such as smuggling to make money do it in a clandestine manner. Direct proof is difficult to get if not impossible. The nature of the activity and the harm it does to the community provide a sufficiently rational basis for the Legislature to make such an assumption;
5)    Conviction is only a factor by which persons can be identified to whom Act can be made applicable. Connection with the conviction is too remote and, therefore, in our opinion, would not be hit by the prohibition contained under Article 20 of the Constitution of India;
6)    If a subject acquires property by means which are not legally approved, sovereign State would be perfectly justified to deprive such persons of the enjoyment of such ill-gotten wealth. There is a public interest in ensuring that persons who cannot establish that they have legitimate sources to acquire the assets held by them do not enjoy such wealth;

7)    Such a deprivation, in our opinion, would certainly be consistent with the requirements of Article 300A and 14 of the Constitution which prevent the State from arbitrarily depriving a subject of his property.

Thursday, January 23, 2014

Cenvat credit available for fuel used by one unit to generate power for consumption by two manufacturing units

Fuel used for generation of electricity, a part of which is also supplied to another unit of same  manufacturer, is eligible for credit as input; assessee is not required to have two separate power facilities for two different units.
a)  The Assessee was availing of Cenvat credit of duty paid on Furnace Oil used as fuel in DG sets for generation of electricity. A part of electricity so generated was supplied to another unit engaged in manufacture of Polymer Chips, which was main input of the assessee;
b)  The Department denied proportionate credit on Furnace Oil used in generation of electricity consumed by the other unit.
The High Court held in favour of assessee as under:
1)  Tax law should be interpreted in conformity with normal commercial practice. Therefore, the manner of 'use' , should be accepted as to economical, efficient and convenient manner of 'use' because a contrary interpretation would lead to frustrating purpose of law in granting credit;
2)  Generation of electricity in one unit for use in all neighbouring units of a manufacturer is more efficient and economical than setting-up generating facility at each and every factory;
3)  So long as factory and manufacturer are one, credit cannot be denied merely because of separate registration and/or different line of production as there is no such statutory regulation or rule;
4)  It is logical that if two units are being run at one place, producing two different items and electricity is supplied to both of them by a common generator; credit benefit shall be available in respect of both the manufacturing units, unless statutorily provided otherwise; and

5) It was neither expedient nor desirable unless provided otherwise statutorily to have separate electricity generating sets for different manufacturing units. Accordingly, credit was to be allowed. - Commissioner of Customs & Central Excise, Noida, U.P v. Jindal Polyester [2014] 41 173 (Allahabad) 

Wednesday, January 22, 2014

Sec. 40(a)(ia) contemplates actual tax deduction and not mere debit entry in account of payee

The Tribunal held in favour of revenue as under:
1)  Deduction of tax at source as contemplated by section 40(a)(ia) needs to be real and not illusory;
2)  Deduction of tax at source implies subtraction of the amount of tax from the amount payable by the assessee to the payee out of which tax is deductible at source before it is paid to the payee or is credited to the account of the payee;
3)  It is after deduction of such tax from the amount payable to the payee that the assessee can pay/credit the remaining amount;
4)  The law contemplates real deduction of tax at source out of amount payable by the assessee and not mere book entries by which such tax is debited to the running account of the payee in the books of the assessee, unless such entries are supported by actual deduction;
5)  There was no evidence before the revenue that tax was actually deducted by the assessee at source out of the amounts paid or credited by it to the payees, although such tax was deductible at source;

6)  Unless the assessee proves that it has actually deducted the tax at source out of amounts paid/credited in favour of the payees, it was not possible to delete the impugned disallowance. Therefore, the appeal of the assessee was liable to dismissed. - Atul Auto Ltd. v. JCIT [2013] 40 394 (Rajkot - Trib.)

Tuesday, January 21, 2014

Freezing bank account not akin to seizure of currency; assessee can't ask for de-freezing of bank account under Customs Act

Though 'goods' defined under section 2(22) of Custom  Act include currency, yet, freezing of bank account cannot amount to seizure of currency and hence, assessee couldn’t seek de-freezing of bank account under section 110, if no notice was issued within 6 months of such freezing.
a)  The petitioners were importing high value pesticides/insecticides/ hazardous products in guise of Sodium Bi-Carbonate;
b)  Said transactions were pending investigation. The Department freezed petitioner's bank account;
c)  The petitioner argued that since no show-cause notice was issued against it under section 124 even after expiry of 6 months from freezing of account, it was liable to be de-freezed as per section 110.
The High Court rejected petitioner’s claim with the following observations:
1) If notice required under section 110(2) was not served within 6 months or extended time-limit, goods were liable to be returned;
2) Sections110 and 124 are independent, distinct and exclusive of each other. Even if any seized goods are returnable in terms of section 110, proceedings for confiscation of goods under section 124 may still continue;
3) Section 110(3) deals with seizure of documents or things which in opinion of concerned officer would be relevant to any proceedings under Act;
4) Freezing of bank account was not seizure of any document or thing useful or relevant to any proceedings under the Act; rather freezing of account was only with a view to stop petitioner from withdrawing proceeds of alleged violations under the Act;
5) Though 'goods' as defined under section 2(22) include currency, yet, there is no precedent to show that freezing of bank account would amount to seizure of currency. Since freezing of bank account was not seizure of 'goods' as envisaged under section 110, petitioner was not entitled to de-freezing of bank account unconditionally;
6) Hence, the amount deposited in said bank account after date of freezing account was to be released, subject to furnishing of a bank guarantee in respect of such amount. -  Ravi Crop Science v. Union of India [2014] 41 69 (Delhi)

Monday, January 20, 2014

LO promoting sales of foreign-co. is taxable; incentivising sales force is sales promotional deed, held ITAT

1)    The assessee, M/s Brown & Sharpe Inc. incorporated in USA,had started a LO in India for which permission of the RBI was taken.
2)    The Assessing Officer held that since LO was promoting sales of assessee’s product, income attributable to LO’s activities was taxable in India.

The Tribunal held in favour of revenue as under:
1)  The assessee-company was registered with the Registrar of Companies in India for carrying on the business. The LO, apart from having Chief Representative Officer and other staff, was also having a technical expert;
2)  The employees of LO were promoting the sales of the goods of the assessee-company as per service conditions.There was a sales incentive plan by which employees were provided the incentive for achieving the sales target and the performance of the employees was being judged by the orders secured by the assessee-company;
3)  All these activities established that the LO of the assessee was promoting the sales of the assessee-company in India and, therefore, the revenue was fully justified in holding that the income attributable to LO was taxable in India;
4)  The liaison office received more amount than the expenses actually incurred by it. Thus,the sum received by it over and above the expenses actually incurred, year after year, were rightly treated as income by revenue. - Brown & Sharpe Inc. v. ACIT (2014) 41 345 (Delhi - Trib.)

Saturday, January 18, 2014

Bal Bharti School, existing solely for profit motive, aims at charging higher fees; no sec. 10(23c) relief to it

a)The assessee, a society registered under the Societies Registration Act, moved an application before the Chief CIT praying for grant of exemption under section 10(23C)(vi). It claimed that it was engaged in the activity of imparting education;
b)The Chief CIT considered the reply of the assessee and rejected the application. Aggrieved by the order of Chief CIT the assessee filed the instant writ.
The High Court dismissed writ with following observations:
1) The Chief CIT was competent to call for such documents including annual accounts or information from the assessee to check the genuineness of the activities;
2)  He has been conferred with powers to ascertain while judging the genuineness of the activities as to whether the assessee applies its income wholly and exclusively to the objects for which it is established;
3)  He recorded his finding that in each year the surplus as shown by the assessee was increasing and was used for activities which were aimed at enhancing the income of the institution. This also suggested that the fees charged from the students was on the higher side as in each year there was an element of profit;
4)  His findings clearly showed that the assessee did not exist solely for educational purposes and its main motive was to make profit. The diversion of fund for personal use had been noted in the impugned order. 
5) Thus, the Chief CIT didn’t commit any error of law or facts to reach the findings that the assessee did not exist solely for educational purposes, as its motive seems to be making profit and it existed for purposes of profit;

6)  The application for grant of exemption under section 10(23C)(vi) was correctly rejected. - Bal Bharti Nursery School v. Chief CIT [2013] 40 301 (Allahabad)

Friday, January 17, 2014

New beginning in New Year - CBDT exempts deduction of tax from service tax component if it's charged separately

CBDT had issued a Circular no. 4/2008 dated 28-04-2008, wherein it was clarified that TDS under section 194-I was required to be made on the amount of rent paid/payable without including service tax.
Thus, the practice prevalent in the industry till now is that no TDS is charged on service tax component comprised in the rent as per provisions of sec. 194-I. In all other cases, tax is being deducted on sums paid to residents including on service tax component comprised therein.
This position was settled one and then came the verdict of Rajasthan High court in case of CIT (TDS) v. Rajasthan Urban Infrastructure [2013] 37 154 (Rajasthan) in which it was held that if service tax was paid separately and it was not included in fees for professional services or technical services, no TDS was required to be made on the service-tax component under sec. 194J. Yet this Ruling was applicable to sec. 194J and it could be relied upon by taxpayers only if sum charged was liable for TDS under sec. 194J and not for sums paid under other provisions of the Act.
Thus, CBDT has clarified this position and it issued Circular no. 1/2014 which provides that no tax shall be deductible on service tax component comprised in the sums payable to resident, if service tax is indicated separately.
Editor’s comments:
This is a welcome move from the CBDT as it was much awaited circular.Till now deductors were under obligation to deduct tax from the service-tax component as well so as to avoid the litigations and fears of disallowance of expenditure.

Thursday, January 16, 2014

ITAT mistook child birth as an act of god; HC allows sec. 10(23C) relief to maternity hospital

The High Court held in favour of assessee as under:

1)  The expression 'medical attention' in section 10(23C)(iiiae) cannot be read to be confined to medical treatment of persons who are only suffering from an illness or a mental disability;
2)  A hospital which provides for maternity care will fulfill the description of a hospital for the reception and treatment of persons requiring medical attention;
3)  The Tribunal has dealt with at length its own view of the process of child birth. The Tribunal regards child birth as an act of God and a natural process and has proceeded to refer to the fact that in the olden days, deliveries were performed by midwives at individual households;
4)  According to the Tribunal it was only because of the anxiety of people in modern times to be relieved of discomfort or pain during labour, that patients choose hospitals. This was not a correct assessment either of modern science or of statutory interpretation;
5)  It is a matter of common experience that a hospital providing for maternity care has to deal with emergencies and on occasions, such hospitals have to provide emergent care which was often necessary to save the lives of the mother and the child.
6)  The views of Tribunal couldn’t be accepted as there was considerable reduction of maternal mortality due to availability of expert medical care. Therefore, maternity hospitals which exist solely for philanthropic purposes and not for profit are entitled to tax exemption under section 10(23C)  - Nehru Prasutika Aspatal Samiti v. CIT [2014] 41 283 (Allahabad)

Wednesday, January 15, 2014

ITAT applies Nike’s case to hold that no tax leviable on Indian ‘LO’ engaged in procuring goods for export

The Tribunal held in favour of assessee as under:
1)   Tesco Hong Kong was invoiced for the goods and re-invoices the goods to the buyer without any mark up. It charges 5% commission on products sourced. The Indian Liaison office (‘LO’) of Tesco facilitates sourcing of goods by Tesco group companies;
2)   Therefore, in the instant case, other facts being more or less same as in Nike's case, the above facts satisfy the condition "for the purpose of export" in Explanation 1(b) to section 9(1)(i) more precisely than the facts of the Nike case, where Nike LO sourced goods for the affiliates from India as goods were purchased by the affiliates directly from the vendor in India and Nike Inc. didn't purchase by itself and sell to its subsidiaries, but, arranged for the purchase by Nike affiliates from India;

3)   As there was no evidence on record to suggest that Tesco's Indian LO indulged in commercial activities and that it was in fact a PE, exemption under Explanation 1(b) to section 9(1)(i) could not be denied - Tesco International Sourcing Ltd. v. Dy. DIT(International Taxation) [2014] 41 241 (Bangalore - Trib.)

Friday, January 10, 2014

HC rules out applicability of sec. 43B to employees’ contribution to PF; no deduction if paid after due date of PF Act

Due date under section 43B, i.e., due date of filing income-tax return, is not applicable under section 36(1)(va) to employees' contributions to PF/ESI, etc.

The High Court held as under:

1) Sum received by the assessee from any of his employees as contribution to PF/ESI, shall not be entitled to deduction if such sum is not credited by the assessee to the employees' account in the relevant fund or funds on or before the due date as per Explanation to section 36(1)(va) of the Act;

2) Merely because Second Proviso to Section 43B of the Act in which there is a reference to due date as defined in Explanation below clause (va) of sub-section (1) of section 36, it can’t be held that even section 36(1)(va) has been amended and/or even Explanation below clause (va) of sub-section (1) of section 36 has also been deleted;

3) If employee’s contribution received by the assessee is not credited to the employees' account in the relevant fund, on or before the due date specified under PF Act, ESI Act or any other law, the assessee shall not be entitled to deduction of such amount even if contributions have been deposited on or before due date under section 43B, i.e., due date for filing of income-tax return – CIT v. Gujarat State Road Transport Corporation [2014] 41 100 (Gujarat)

Wednesday, January 8, 2014

Interest on belated payments of EMI on home loan doesn't qualify for sec. 24 deductions

Interest on interest paid due to default in payment of home loan instalments is not deductible under section 24.

The High Court held in favour of revenue as under:

1) Income of the assessee under the head "income from house property" is to be computed for the purpose of income tax after making certain deductions as are envisaged in Section 24;

2) Section 24(b) stipulates that amount of interest payable on capital borrowed, inter alia, for construction of the property yielding income, is an admissible deduction;

3) It thus is evident that only interest payable on such borrowed capital is to be deducted while computing income chargeable to income tax under the head "income from house property";

4) Therefore, interest paid on interest levied by the bank, because of non-payment of instalments of borrowed capital to the bank, does not qualify for an admissible deduction - Master Naman Kumar v. CIT [2014] 41  10 (Punjab & Haryana)

Tuesday, January 7, 2014

No denial of sec. 54F relief even if construction of new house commences before sale of original asset, rules HC

The High Court held as under:

1) Section 54F(1) if read carefully states that the assessee, being an individual or Hindu Undivided Family, who had earned capital gains from transfer of any long-term capital asset, not being a residential house, could claim benefit under the said section provided any one of the following three conditions were satisfied:

(i) The assessee had, within a period of one year before the sale, purchased a residential house;

Within two years after the date of transfer of the original capital asset purchased a residential house, and

Within a period of three years after the date of sale of the original asset, constructed a residential house.

2) For the satisfaction of the third condition, it was not stipulated or indicated in the Section that the construction must begin after the date of sale of the original/old asset;

3) There was no condition or reason for ambiguity and confusion which required moderation or reading the words of the said sub-section in a different manner – CIT v. Bharti Mishra [2014] 41 50 (Delhi)