No sec. 54F relief if newly acquired house is instantly demolished: Chennai ITAT

Facts:

a) Assessee sold two shops and a residential building for certain amounts. These amounts were deposited in the capital gains scheme account in a nationalized bank. Later on, the assessee withdrew this amount and purchased a residential plot and claimed the benefit of section 54F.

b) Assessing Officer (AO) disallowed claim of the assessee on the ground that the new asset purchased was instantly demolished by the assessee and, further, he had proceeded to construct a shopping complex.

c) CIT (Appeals) affirmed the order of the AO. Aggrieved assessee filed the instant appeal before the Tribunal.

Tribunal held in favour of revenue as under:

1) The Parliament in its wisdom had enacted section 54F in the Finance Act, 1982 with a view to encourage housing construction. Thus, the intention of the legislation was not for destruction of residential building but for promoting the construction of the residential housing units.

2) If the benefit of section is extended where the new residential building is demolished without constructing another residential building within the time limit prescribed under the Act, then the purpose of the Act is defeated.

3) In the case CIT v. V. Pradeep Kumar [2006] 153 Taxman 138 (Madras), it had been categorically held that "the burden is on the assessee to prove that he had actually constructed a new residential house for the purpose of the exemption under section 54F. Section 54F emphasizes construction of residential house. The construction must be a real one. It should not be a symbolic construction. Mere construction by way of extension of the old existing house would not mean constructing a residential house as contemplated under section 54F."

4) Since assessee had demolished the newly acquired residential house instantly for the purpose of construction of a six floored shopping complex, exemption under section 54F was rightly disallowed. - [2017] 78 taxmann.com 177 (Chennai - Trib.)

Limitation of Relief clause can’t be invoked to deny tax exemption to Singaporean Shipping Company

Facts:

a) Singapore based company was engaged in the business of operation of ships in international waters. It had a shipping agent in India in the form of a wholly owned subsidiary ‘ALP India Pvt. Ltd.’

b) In return of income, assessee sought to claim benefit of article 8 of India-Singapore DTAA for its gross freight earnings collected from India.

c) Assessing Officer (AO) noted that the assessee could not produce ship registration certificates and copies of charter party agreements of few ships so he denied benefit of article 8 of DTAA in respect of such operating ships.

d) Further, CIT (Appeals) denied entire benefit by invoking the limitation clause of article24 of India-Singapore DTAA. Aggrieved-assessee filed the instant appeal before the Tribunal.

Tribunal held in favour of assessee as under:

1) As per the remittance basis of taxation under Singapore law, income arising outside the country is taxable only when that income is remitted to and received in the Singapore. However, any income accruing in or derived from Singapore is taxable on accrual basis under Singapore law.

2) For applicability of limitation of benefit clause, two conditions needs to be satisfy, firstly, income earned from the source state (here in this case, India) is exempt from tax or is taxed at a reduced rate; and secondly, under the laws in force of the resident State (Singapore), such income is subject to tax by reference to the amount thereof which is remitted to or received in the resident State and not by reference to the full amount  thereof. If both the conditions are satisfied, then only the exemption is allowed or the reduced rate of tax is levied on the amount so remitted.

3) In the instant case, the income of assessee-company from shipping operations was not taxable on remittance basis under the laws of Singapore, albeit it was liable to be taxed in-principle on accrual basis by virtue of the fact that this income under the income tax laws of Singapore is regarded as 'accruing in or derived from Singapore'.

4) Thus, the condition of article 24 couldn’t be satisfied in the present case. Therefore, CIT (Appeals) was not justified in denying the benefit of article 8 by invoking the limitation of benefit clause. - [2017] 78 taxmann.com 240 (Mumbai - Trib.)

Key Takeaways from 10th Meeting of GST Council: State Compensation Law Approved

The GST Council failed to approve all GST related Bills in its 10th meeting at Udaipur, Rajasthan and it has only finalised legally vetted State Compensation law. The following are the key takeaways of the meeting:

a) State Compensation Law Approved: The Council has approved the legally vetted Draft of State Compensation Law. According to 101st Constitution Amendment Act, 2016 the Centre will compensate State for first five years of GST implementation in case any loss revenue accrues to State on account of GST Implementation. The Draft Law provides that base year for calculation of compensation would be financial year 2016 and growth in revenue would be taken as 14 percent calculated on compounding basis. The Draft bill will now laid before the Cabinet and after approval of same it will be presented before the Parliament.

b) Central GST, State GST and Integrated GST: The Finance Minister said that there were some contentions issues pending on Model GST Laws. Some of them are as under:

1) Composition of Tribunal members and their eligibility

2) Exemptions during transition phase to Industry (E.g. Extension of time for return filling, etc.)

3) Classification of Works Contract as goods or Services

4) Definition of Agriculture, etc.

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Advocate’s laxity to obtain receipt from Police for transfer of bounced cheque isn’t misconduct

Client has filed a complaint before Bar Council of India alleging that cheque handed over to the appellant – Advocate to initiate criminal action against defaulter under Section 138 of the Negotiable Instrument Act was not returned to him. On the basis of complaint received, a disciplinary proceeding was initiated against Advocate and found him guilty of professional misconduct. Further, An Advocate has filed appeal to the Apex Court against the order of disciplinary committee.

The Apex Court held that it is only a case of negligence and not a case of 'gross negligence' and hence the Advocate is not guilty of professional misconduct as Advocate handed over the original bounced cheque to police given by his client and failed to obtain any acknowledgement from them. - [2017] 78 taxmann.com 220 (SC)

CST won't accrue to that State where BrahMos Missile was stored only for warhead integration

Assessee, a joint venture company between Russia and India, had been established for purpose of design, development, production and sale of Brahmos Cruise Missile weapon system. The Indian Armed Forces awarded contract to the assessee for manufacture and supply of Brahmos Cruise Missiles.

A manufacturing unit of the assessee had been set up at Hyderabad. The missiles manufactured at Hyderabad unit were sent to Nagpur unit for the purpose of integration of warhead. Subsequently such missiles were dispatched to the Indian Armed Forces from Nagpur as directed by the Hyderabad office.The assessee treated the said transactions as inter-state sales of Missiles affected from its Hyderabad unit and, accordingly, charged and collected CST and paid the same to its assessing authority at Hyderabad. The State of Maharashtra demanded tax from assessee on the ground that was a local sale affected from Nagpur and hence State VAT would be levied. 

The High Court held as under:

It denied the demand of Maharashtra VAT department and held that the sale of missile occur from the Hyderabad and not from the Nagpur. There was branch transfer of missile between Nagpur and Hyderabad for their War head integration. The Nagpur would not be treated as a place from where sale occasioned first for delivery.

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Rs 30 lakhs black money seized by Punjab Police eligible for PMGKY scheme; High Court

Facts:

a) Assessee was travelling in a cab from Delhi carrying Rs. 30 lakhs. Such cash amount was seized by Punjab police and handed over to the Income-tax Officers.b) Assessee filed writ petition seeking unconditional release of amount with a further prayer to avail of the remedy under 'Pradhan Mantri Garib Kalyan Yojana, 2016' (PMGKY) by depositing the aforesaid amount, tax, surcharge and penalty.

High Court held in favour of assessee as under:

1) A person having unaccounted cash can avail of the benefit of the PMGKY scheme by submitting the Form 1 at any time on or before 31-3-2017 provided he does not fall under the list of excluded cases.

2) In the exclusion, it is mentioned that the scheme shall not apply in relation to prosecution for any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code, etc.

3) The use of the words "in relation of prosecution of any offence" instead of "in relation to investigating for any of the offence" clearly shows legislative intent that provisions would apply only if the chargesheet or complaint is filed for prosecuting any person under any of the aforementioned provisions of the Act and not merely when investigations are going on.

4) In the instant case, no complaint or chargesheet was pending against assessee. The alleged un-disclosed seized cash had been handed over to the Income-tax department and summons had already been served upon the petitioner.

5) Assessee was not trying to project undisclosed income as duly accounted for availing of the remedy. Since he was not amongst the persons who weren’t eligible for availing of the PMGKY Deposit Scheme, the Income-tax Officer could not deny the benefit of PMGKY. - [2017] 78 taxmann.com 172 (Punjab & Haryana)

Harsh Punitive action will be taken against shell companies: FinMin

Departments to review the functioning of ‘Shell Companies’ in India, so as to prevent their misuse for money laundering and tax-evasion, especially in the context of unearthing black money post demonetization. In the initial analysis, it has been found that ‘Shell Companies’ are characterized by nominal paid-up capital, high reserves & surplus on account of receipt of high share premium, investment in unlisted companies, no dividend income, high cash in hand, private companies as majority shareholders, low turnover & operating income, nominal expenses, nominal statutory payments & stock in trade, minimum Fixed Asset

It has been found that 559 beneficiaries have laundered money to the extent of Rs.3900 Crore with the help of 54 Professionals who have been identified. These information has been shared with SIT, Income Tax Department, Enforcement Directorate, SEBI and the ICAI. Harsh punitive actions will be taken against the deviant shell companies which will include freezing of Bank Accounts, striking off the names of dormant companies, invocation of Benami Transactions (Prohibition) Amendment Act, 2016 – Press Release dated, 10-02-2017

TPO couldn't benchmark convertible debentures on basis of LIBOR when such debentures were issued in INR

Facts:

a) Assessee-company issued Compulsorily Convertible Debentures (CCDs) convertible into one equity share for every debenture held. It had paid interest at the rate of 12 per cent on the CCDs.

b) Assessee benchmarked weighted average rate of Prime Lending Rate (PLR) as per the State Bank of India (SBI), which was at 12.26 per cent. Since the rate of interest paid by it was lesser than SBI PLR, assessee stated that its rate of interest paid was consistent with arm's length standard from the Indian TP Regulations perspective.

c) Transfer Pricing Officer (TPO) however, did not agree with assessee's contentions. He considered the CCDs as loan and benchmarked the interest rate at LIBOR plus 200 basis points. Accordingly, certain addition was made to assessee's ALP.

d) DRP upheld order of TPO. Aggrieved-assessee filed instant appeal before the Tribunal. Tribunal held in favour of assessee as under:

1) There was no dispute with reference to the fact that the CCDs were issued in Indian Rupees. Accordingly, TPO had wrongly treated the issuance of CCDs as a loan, by treating it as an external commercial borrowing, ignoring the fact that loan is a debt, whereas CCD is hybrid instrument in nature basically categorised as equity in nature.

2) It was to be reiterated that issuance of CCDs was denominated in Indian Rupees and not foreign currency. Therefore, TPO had erred in considering LIBOR as benchmark rate which was in complete contradiction to the principles on the issue.

3) Thus, assessee's contentions, that the CCDs could not be categorised as a loan and LIBOR plus two hundred basis points benchmark couldn’t be accepted on the facts of the case, were accepted. [2017] 78 taxmann.com 75 (Hyderabad - Trib.)

Certificate for lower TDS is ‘person specific’ and not ‘income specific’, says Kolkata ITAT

Facts:

a) Assessee paid interest to two parties which was liable for TDS under section 194A. Both parties obtained a certificate from their respective Assessing Officers under section 197 for lower deductions of tax at source.

b) However, the amount mentioned in such certificate was lesser than the actual amount of interest paid and assessee had deducted tax at source at a lesser rate on the entire payment.

c) AO held that the lower deduction of tax was valid only in respect of amount specified in certificate and on the balance amount, assessee ought to have deducted tax at source at the normal applicable rate.

d) For the shortfall, AO treated assessee as an assessee-in-default and levied interest under section 201(1A).

e) Commissioner (Appeals) confirmed order of AO. Aggrieved-assessee filed instant appeal before the Tribunal.

Tribunal held in favour of assessee as under:

1) Deduction of tax at source at lower rate is 'person specific' and cannot be extended to amounts specified by recipient of payment while making an application for grant of certificate under section 197.

2) Section 197(2) along with relevant rule 28AA(2), clarifies that once certificate under section 197(2) is issued for lesser/no TDS deduction, person making payment is at liberty to deduct tax at rates specified in certificate and that it does not make any reference to any income specified in such certificate.

3) Thus, interest under section 201(1A) levied for alleged short deduction of TDS under section 194A on interest payments made by assessee was to be deleted. [2017] 78 taxmann.com 152 (Kolkata - Trib.)

Payment made to Polish Co. for dismantling machinery couldn't be held as 'FTS'

Facts:

a) The assessee-company made payment to foreign company with out deducting tax at source for work of dismantling and sea-worthy packing of paper mill machinery. 

b) Assessing Officer (AO)treated assessee as assessee-in-default as he was of view that payments were made for' fees for technical services' which were liable to tax in India as per section 9.

c) Commissioner (Appeals) reversed the order of AO. Aggrieved by the order of CIT, revenue filed the instant appeal before the Tribunal.

Tribunal held in favour of assessee as under:

1. There is a difference between 'Contract of work' and 'Contract of service'. The two words convey different ideas.

2. In the 'Contract of work', the activity is predominantly physical; it is tangible. In the activity referred as 'Contract of service', the dominant feature of the activity is intellectual, or at least, mental. In contrast, in the case of rendering any kind of 'service', intellectual aspect plays the dominant role.

3. In the instant case, the scope of work mentioned in the agreement entered by the assessee with the foreign company clearly explained that it was 'contract of work' to dismantle the machinery, therefore, it was not a 'contract of service'. 

4. Since dismantling of machinery did not require any technical services, therefore, payment by the assessee did not fall in the ambit of fees for technical services. - [2017] 78 taxmann.com 49 (Kolkata - Trib.)