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Important Links SC HC CESTAT ITAT AAR

ITAT RULINGS 2011

AIT-2011-376-ITAT
Samsung Heavy Industries Co. Ltd. Vs. ADIT (International Taxation) Dehradun

Mumbai project office, as per resolution of the Board of Directors dated 3rd April, 2006, was opened for coordination and execution of project and no restriction has been imposed by RBI on the working of project office. Thus, in the case of present assessee, the fixed place PE has come into existence in the shape of Mumbai project office on the day when assessee was permitted by RBI to open its such office. Such project office is PE within the meaning of Article 5.1 of DTAA as the assessee has wholly or partly carried out its business activity through it.

AIT-2011-381-ITAT
M/s ING Vysya Bank Ltd. Vs. DDIT (International Taxation), Bangalore

the assessee has failed to deduct tax at source u/s 195 of the Act on the payments made by it to ING Zurich for purchase of shrink wrapped software from outside India.

AIT-2011-390-ITAT
M/s. Bharati Shipyard Limited Vs. DCIT, Mumbai

Special Bench: the amendment brought out by the Finance Act, 2010 to section 40(a)(ia) w.e.f. 01.04.2010, is not remedial and curative in nature.

AIT-2011-396-ITAT
M/s. Khanna & Annadhanam Vs. ACIT, New Delhi

assessee is a firm of Chartered Accountants and carrying on profession as such. During the year the assessee had shown a sum of Rs.1,15,70,000/- in the capital account of the partners as received from an international consultancy firm Deloitte Touche Tohmatu International (DTTI). The amount was not reflected by the assessee in its P&L a/c but directly credited to partners accounts. On AOs questioning, it was stated that the receipt is not taxable in firms hand as it is capital receipt in the hands of partners. AO held that it was patently a receipt of the firm liable for income tax. ITAT confirmed AOs decision, in penalty proceedings AO further held that assessee firm camouflaged the nature of receipt by furnishing inaccurate particulars and imposed the penalty

AIT-2011-406-ITAT
M/s Italian Thai Development Public Co. Ltd. Vs. ADIT (International Tax)
, New Delhi

the notice dated 28.09.2007 has been validly posted and the presumption of its service has not been rebutted by any cogent evidence. Therefore, it is held that the notice has been duly served on the assessee.- AO could not have rejected the books of account and taken recourse to the provision contained in section 44BBB for estimating the income, especially when the provision is not applicable to the case of the assessee

AIT-2011-407-ITAT
M/s. Elsamex India Pvt. Ltd. Vs. ITO, New delhi

CIT (A) was not justified in holding that the payment was for a routine normal maintenance and supply of labour and the provisions of section 194-C are attracted. In our considered view, it was lease agreement for letting out fixtures & fittings. The obligation on assessee to maintain office and provide manpower to office was a secondary to the letting out of fixtures & fittings.

AIT-2011-408-ITAT
M/s P.B.Asia Limited Vs. DIT (International Taxation), New Delhi

we, therefore, uphold the view of the DIT that the matter was not examined by the AO and the AO has not applied his mind before accepting the return of income of the assessee. We are, therefore, of the considered opinion that it was a reasonably fit case for exercising revisionary jurisdiction under Section 263 of the Act. We, therefore, uphold the order of the learned DIT in cancelling the assessment order and restoring the matter back to the file of the AO for his assessment after conducting proper enquiries

AIT-2011-409-ITAT
GIL Mauritius Holdings Ltd. Vs. ADIT, (International Taxation), Dehradun.

the ship remained in territorial waters of India for such length of time in which the work of assembling the pipe lines could be completed. the words fixed place do not represent a point in space but an area in space, which is available to the assessee for assembling the pipe lines. Nonetheless, the work done by the assessee is of assembling the pipe lines and the issue is regarding harmonious interpretation of paragraph nos. (1) and (2). In this situation, we tend to agree with the ld. AAR that if we stop at paragraph no. (1), paragraph 2(i) of the DTAA becomes otiose. This would not be a proper way of construction of the DTAA. The contracting parties included within the definition of the PE only those assembly projects which lasted for more than 9 months. This has been specifically provided in the treaty. This leads to an inference that if an assembly project lasts for less than nine months or nine months, there would be no inference of PE.

AIT-2011-417-ITAT
ICICI Bank Ltd. Vs. ADIT (International Taxation), Mumbai

capital gains arising to various persons of Indian origin or non-resident Indians residing in UAE, who are clients of the Bank. - The term resident has been defined in the notification as individual who is present in that UAE for a period or periods totalling in the aggregate at lease 183 days in the calendar year concerned. In this case there is no dispute with reference to the fact that these persons are residents of UAE. Therefore, we are of the opinion that there is no liability to tax the capital gains arising to the individual constituents/investors on the transactions in Government Treasury Bills undertaken through the Bank. Since there is no liability to tax in India, obviously the Bank is not covered by the provisions of TDS

AIT-2011-422-ITAT
Bennett Coleman & Co. Ltd. Vs. Addl. CIT, Mumbai

Special Bench: Whether the CIT(A) was justified in declaring long term capital loss of Rs.22,21,85,693/- on account of reduction in paid up equity share capital - the loss arising on account of reduction in share capital cannot be subjected to provisions of sec.45 r.w.s. 48 and, accordingly, such loss is not allowable as capital loss. At best such loss can be described as notional loss and it is settled principle that no notional loss or income can be subjected to the provisions of the I.T.Act.

AIT-2011-475-ITAT
M/s. Neo Sports Broadcast Private Limited Vs. ADIT,
(International Taxation), Mumbai

As the consideration for live broadcasting does not fall either u/s 9(1)(i) or u/s 9(1)(vi), in our considered opinion, such amount is not chargeable to tax under the provisions of this Act in the hands of non-resident. As such there is no question of deduction of tax at source.

AIT-2011-482-ITAT
Ms. K. Radhika Vs. DCIT, Mumbai

'willingness to perform' for the purposes of Section 53A is something more than a statement of intent; it is the unqualified and unconditional willingness on the part of the vendee to perform its obligations. Unless the party has performed or is willing to perform its obligations under the contract, and in the same sequence in which these are to be performed, it cannot be said that the provisions of Section 53A of the Transfer of Property Act will come into play on the facts of that case. It is only elementary that, unless provisions of Section 53A of the Transfer of Property Act are satisfied on the facts of a case, the transaction in question cannot fall within the scope of deemed transfer under Section 2(47)(v) of the IT Act

AIT-2011-492-ITAT
Star India Limited Vs. Addl. CIT, Mumbai

CIT(A)s initiating the revision proceedings (i) in respect of set off of loss from eligible profits of business for the purpose of computing deduction under section 80 HHF of the Act , and thus denying deduction under section 80 HHF amounting to Rs 9,51,70,949 ; (ii) in respect of deductibility of expenses incurred in foreign currency from export turnover and total turnover, for the purpose of computing deduction under section 80 HHF of the Act; and ( iii) in respect of allowability of bad debts as a deduction.

AIT-2011-496-ITAT
Mahindra & Mahindra Limited Vs. ADIT (International Taxation), Mumbai

The law is well settled that in respect of reimbursement of expenses there is no obligation to deduct tax at source - while holding that the payment in question was fees for technical services, the CIT(A) has not answered the arguments raised on behalf of the assessee that even assuming that the payment in question was FTS nothing was made available to the assessee as understood in several decided cases including the decision of the Mumbai Bench of ITAT in the case of Raymond Ltd.(supra). We are of the view that this aspect will not be required to be considered because of our conclusion that remittance in question is reimbursement expenses incurred by LDV on behalf of the assessee. Even otherwise we are of the view that the sum in question cannot be treated as FTS because nothing was made available to the assessee. For the reasons stated above we hold that the remittances by the assessee are not chargeable to tax in the hands of the LDV. Consequently the assessment of the sum in question in the hands of the assessee as agent of LDV is held to be not correct. Consequently there will be no liability to charge interest under section 234B of the Act.

AIT-2011-501-ITAT
M/s. International Global Networks BV Vs. DDIT (International Taxation), Mumbai

If the AO after due application of mind decides a particular issue in a particular manner in the original assessment, then he cannot initiate reassessment proceedings without there being any fresh material coming to his notice after the passing of assessment order. Obviously the present case is a change of opinion by the AO on the same set of facts which were there at the time of completing the original assessment. This course of action is impermissible.

AIT-2011-515-ITAT
M/s Diamond Tool Industries Vs. JCIT, Mumbai

there is an inextricable link between the manufacturing activity, the payment of sales tax and the sales tax incentive. Therefore, in our opinion, such sales tax incentive which has been retained by the assessee from the Sales Tax collected has to be held as derived from the industrial undertaking and consequently is eligible for deduction u/s 80IB of the Act

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