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ITAT RULINGS 2012

AIT-2012-198-ITAT
Ratnakar Sawant Vs. ITO, Mumbai

The provisions of Section 194C applies to any payment made to a contractor for carrying out any work in pursuance of a contract between the contractor and the specified persons. The contract also includes sub-contract. For application of provisions of Section 194C in this case it has to been seen, whether the assessee has entered into any kind of sub-contract with the outside parties from whom he has hired the forklift vehicles on random basis to fulfil his own commitment towards his principals. There is no material on record to remotely suggest that there was any kind of oral or a written contract or sub-contract with the outside parties from whom he has taken the forklift vehicles. Until and unless risk and responsibility of the contract undertaken by the assessee is shifted to the sub-contractors, it cannot be held that these persons are the sub-contractors of the assessee.

AIT-2012-201-ITAT
DIC Asia Pacific Pte Ltd. Vs. ADIT, International Taxation, Kolkata

CIT(A) was not justified in upholding the levy of ‘education cess’ and ‘higher education cess’ at the rates of 2% and 1% respectively, in addition to the tax rates prescribed in the India Singapore Double Taxation Avoidance Agreement.

AIT-2012-202-ITAT
M/s Planet Herbs Life Science Pvt. Ltd. Vs. ITO,  Delhi

where an amount paid is not chargeable to tax In India at all, there is no requirement of tax deduction. Section 195 of the Act clearly states that any person responsible for paying to a non resident any interest or any other sum chargeable under the provisions of this Act shall at the time of credit of such income will income tax thereon at the rate inforce at the time of payment or credit. Therefore, the first test to be applied for deduction of TDS is to see whether income in the hands of payee is taxable in India or not. In the present case, the payments were reimbursement of expenses and was in no way income chargeable to tax in India in the hands of the payee and hence did not require any tax deduction at source and therefore addition made u/s 40a(ia) of the Act was not warranted.

AIT-2012-205-ITAT
All Cargo Global Logistics Ltd. Vs. DCIT, Mumbai

Special Bench: In assessments that are abated the AO retains the original jurisdiction as well as jurisdiction conferred on him u/s 153A for which assessments shall be made for each of the six assessment years separately.

AIT-2012-219-ITAT
Madhu Jayanti International Ltd.
Vs. DCIT, Kolkata

Special Bench: the assessees who are in the business of blending and processing of tea and export thereof, in 100% EOUs are manufacturer/ producer of the tea for the purpose of claiming exemption u/s. 10B of the Act. Further, assessees who are in the business of blending and processing of tea in respect of undertakings in free trade zones are manufacturer/producer of tea for the purpose of claiming exemption u/s. 10A of the Act.

AIT-2012-221-ITAT
Nagarjuna Construction Co. Ltd.
Vs. DCIT, Hyderabad

estimation of income on contracts which are disclosed in the regular books of accounts cannot be disturbed in the block period, and at best it could be the subject matter of regular assessment only. In view of this, we are inclined to hold that the CIT(A) is not justified in giving the direction to assessing officer for the Assessment Year 2001-02 and for part period from 01.04.2001 to 20.12.2001 to determine the undisclosed income at 6.5% before depreciation as against 4.49% for the assessment year 2001-02 and 5.59% for part period from 01.04.2001 to 20.12.2001 declared by the assessee

AIT-2012-223-ITAT
Abbey Business Services (India) (P.) Ltd.
Vs. DCIT, Bangalore

(i) the assessee was the real and economic employer of the secondees under the secondment agreement.

AIT-2012-234-ITAT
Kotak Mahindra Capital Co. Ltd. Vs. ACIT, Mumbai

Special Bench: the provisions of sec.74 which deal with carry forward and set off of losses under the head “capital gains” as amended by Finance Act, 2002, will apply only to the unabsorbed capital loss for the assessment year 2003-04 and onwards and will not apply to the unabsorbed capital losses relating to the assessment years prior to the assessment year 2003-04.

AIT-2012-256-ITAT
Credit Suisse (Singapore) Limited Vs. ADIT (International Taxation), Mumbai

the gains arising on cancellation of foreign exchange forward contract has to be treated as capital gain and accordingly the A.O. and the DRP were not justified in treating the said gain as ‘income from other sources’

AIT-2012-259-ITAT
Mitchell Drilling International Pty. Ltd. Vs. DDIT, Delhi

service tax paid by the assessee could not form part of amount for the purpose of deemed profits u/s 44BB unlike the other amounts received towards reimbursement

AIT-2012-260-ITAT
Nidhi Export Vs. ACIT, Delhi

no TDS was required to be made because payment of commission are made to non-resident overseas agent. As such no income is arising to the non-resident agent in India. So, no TDS is deductible u/s 194H of the Act, which is applicable for resident Indians only, even the provisions of section 195 is not applicable as payments are made to non-resident overseas agents for the services rendered outside India

AIT-2012-272-ITAT
Institute of Science & Management Vs. CIT, Patna

Merely because some amount has been spent by assessee society which is not in accordance with its aims and objects, at the time of giving exemption u/s. 11 & 12 of the Act, benefit of exemption could be denied to assessee for the said claim but it could not be the basis for cancellation of registration of assessee society

AIT-2012-275-ITAT
M/s National Petroleum Construction Company Vs. ADIT (International Taxation), Delhi

(i)  Whether, the appellant has a permanent establishment in India, in the form of: - (a)  Fixed place PE in the form of ‘office’, as defined under Article 5(2)(c) of the Double Taxation Avoidance Agreement between India and UAE; or

AIT-2012-313-ITAT
Akhilesh Kumar Yadav Vs. DCIT, Agra

CIT(A) was justified in holding that in terms of section 273B of the IT Act, the assessee has been able to prove that there was a “reasonable cause” for failure to comply with the provisions of law. We, therefore, do not find any illegality or infirmity in the order of the ld. CIT(A) in deleting or canceling the penalty.

AIT-2012-315-ITAT
Hindustan Petroleum Corpn. Ltd. Vs. DCIT, Mumbai

the bottling plant wherein the LPG is filled in the cylinders for domestic and non-domestic kitchen use involves various specialised process and therefore, it is an activity of manufacture/production

AIT-2012-318-ITAT
Genesys International Corpn. Ltd. Vs. ACIT, Mumbai

income relating to SEZ unit at Mumbai is to be excluded while computing book profit u/s.115JB of the Act for assessment year 2008-09

AIT-2012-319-ITAT
Gagan Trading Co. Ltd. Vs. ACIT, Mumbai

since the municipal ratable value of the said building at Rs.10,61,190 was higher than the actual rent received, income under the head “Income from house property” was declared by the assessee in is return of income by adopting the municipal ratable value.

AIT-2012-323-ITAT
Nived Anoopkumar Dhandhania Vs. ITO, Kolkata

C.I.T.(Appeals) erred and acted unjudiciously in doubting the genuineness of and confirming the addition of unsecured loans from five parties totaling Rs.6,02,714/- to the appellant’s total income though the transactions are entered through banking channels and the assessee has discharged his onus of identification of the  creditors with PAN Nos., copies of balance sheet and bank statements.

AIT-2012-325-ITAT
M/s. My Home Power Ltd. Vs. Dy. CIT, Hyderabad

CIT(A) erred in holding that the amount realised by transferring Carbon Credits – CER (Certified Emission Reductions) represent income from transfer of goods and that the entire amount was realised on sale of such goods represents income of the appellant.

AIT-2012-328-ITAT
Smt. Uttara Ghosh Vs. DCIT, Kolkata

non-consideration of a judgment of Hon’ble jurisdictional High Court is also a mistake apparent on record, which can be rectified under section 154

AIT-2012-333-ITAT
C. Ramabrahmam Vs. ACIT, Chennai

deduction under section 24(b) and computation of capital gains under section 48 of the “Act” are altogether covered by different heads of income i.e., income from ‘house property’ and ‘capital gains’. Further, a perusal of both the provisions makes it unambiguous that none of them excludes operative of the other. In other words, a deduction under section 24(b) is claimed when concerned assessee declares income from ‘house property’, whereas, the cost of the same asset is taken into consideration when it is sold and capital gains are computed under section 48. We do not have even a slightest doubt that the interest in question is indeed an expenditure in acquiring the asset. Since both provisions are altogether different, the assessee in the instant case is certainly entitled to include the interest amount at the time of computing capital gains under section 48 of the “Act”.

AIT-2012-338-ITAT
M/s. Saffire Garments Vs. ITO, Gandhidham

Special Bench: the proviso to Sec.l0A(lA) of the Income Tax Act, which says that no deduction under Sec.10A shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified under sec.139(l), is mandatory and not merely directory.

AIT-2012-353-ITAT
M/s Hero MotoCorp Limited Vs. ACIT, New Delhi

The consideration is in the form of model fee as well as the running royalty. Paragraph 33.6 of the agreement provides that the licensee i.e. the assessee shall return to the licensor all documents and tangible property supplied by licensor in connection with this agreement. This proves beyond doubt that the intangible property continues to be owned of the licensor and the assessee has not acquired any knowhow or license by virtue of this agreement which can be said to be intangible asset of the assesse- the annual payment of royalty was a revenue expenditure.

AIT-2012-358-ITAT
Angelique International Ltd. Vs. DCIT, Delhi

commission paid to a non-resident agent for services rendered outside India is not chargeable to tax in India and that hence, no disallowance can be made.

 
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