WIRC OFFICE BEARERS FOR 2014-15

WIRC OFFICE BEARERS FOR 2014-15

CA ANIL BHANDARI - CHAIRMAN

CA. JULFESH SHAH - VICE CHAIRMAN

CA. SHRUTI SHAH - SECRETARY

CA. GIRISH KULKARNI - TREASURER

Case Law on Gold to Daughter

IN THE INCOME TAX APP ELLATE TRIBUNAL,

KOLKATA 'B' BENCH, KOLKATA

Coram : Shri Abraham P. George (Accountant Member)

and Shri George Mathan (Judicial Member)

I.T .A. No. : 1400/Kol./ 2011

Assessment year : 2007-2008

Shri Harish Kumar Manikant Goda Vs Income Tax Officer

Appearances by:

Shri Subash Agarwal, Advocate, for the assessee

Shri P.B. Pramanick, JCIT, Sr. D.R, for the Department

Date of concluding the hearing : February 14, 2014

Date of pronouncing the order : February 19, 2014

ORDER

Per Abraham P. Geroge :

1. In this appeal, assessee assails an addition of Rs.3,62,100/- which was scaled down by ld. Commissioner of Income Tax (Appeals)-XIX, Kolkata to Rs.2,68,150/-.

2. Facts apropos are that assessee is an individual , had filed his return for the impugned assessment year declaring income of Rs.1,69,635/-. It seems that return was originally subject only to a processing under section 143(1) of the Act. The assessment was reopened under section 147 of the Act. Reason for reopening is not available in the assessment order. During the course of reassessment proceedings, Assessing Officer based on certain documents came to a finding that jewellery worth Rs.5.5 lakhs was handed over by the assessee to the in-laws of his daughter. As per Assessing Officer, said jewellery was not shown in assessee's balance- sheet. No return of wealth was filed by the assessee. According to the Assessing Officer, the maximum gold jewellery that can be possessed by a married man, who has not filed any wealth-tax return, can be only 200 grams. Taking per gram rate of Rs.939.5, Assessing Officer reached a figure of Rs.1,87,900/-, as the maximum value of gold jewellery that can be possessed by the assessee. The difference of Rs.3,62,100/- was added as unaccounted income.

3. In its appeal before ld. CIT(A ppeals), argument of the assessee was that only 400 grams of jewellery was handed over to the in-laws of his daughter at the time of marriage and on various occasions. As per the assessee, such jewellery was purchased over a large number of years out of savings. Assessee further submitted that there were regular withdrawals made by him from his accounts and, therefore, surplus money was available with him for purchasing small quantities of gold ornaments over a long period of time. As per the assessee, the total amount spent by him for the marriage of his daughter was Rs.12.32 lakhs and the jewellery given to the in-laws of his daughter was only 400 grams.

4. Ld. CIT(Appeals) partly accepted the claim of assessee. According to him, withdrawals were made by the assessee over a number of years from his accounts and, therefore, the cl aim that some of jewellery was purchased in the earlier years out of savings, could not be brushed aside.

He was of the opinion that credit to the extent of 300 grams of jewellery coul d be allowed to the assessee. He, therefore, held that at the rate of Rs.939.5 per gram the maximum value of jewellery that could be held by the assessee was only Rs.2,81,850/-. He, therefore, directed the Assessing Officer to restrict the addition to Rs.2,68,150/-.

5. Now before us, l d. A.R. strongly assailing the order of ld. CIT(Appeals) submitted that 400 grams of jewellery was not a huge holding and not something which was not achievable for a common man.

According to him, reopening of assessment was based on complaint given by the son-in-law of the assessee who was trying for a divorce from assessee's daughter. As per l d. A.R. when withdrawals were found sufficient for more than 400 grams, ld. CIT(A ppeals) erred in coming to a conclusion that assessee could at the best hold onl y 300 grams of jewellery.

6. Per contra, ld. D.R. supported the order of ld. CIT(Appeals).

7. We have heard the rival contentions and perused the material available on record. Ld. CIT(Appeals) has not disputed the claim of assessee that he was having drawings from his accounts in the earlier years. Admittedly assessee was having only 400 grams of jewellery, which was given by him to the in-laws of his daughter at the time of marriage.

Assessee who was regularl y filing return of income claimed that he had acquired such jewellery over a number of years. Since he was having a daughter to marry off, this is not an unbelievable version. Endeavour of every Indian is to accumulate some jewellery which can be used at the time of marriage of his/her daughter. At the best, assessee can only be considered as a doting father. It is not required for an assessee to file personal balance-sheet along with the return of income. Hence, the question of jewellery not appearing in the balance-sheet, in our opinion, is irrelevant. The reopening, as well as assessment, in our opinion, was an aftermath of family disputes between the daughter of the assesese and her husband. This is not a case where undisclosed income or unaccounted income could have been assessed. The addition made is deleted in full.

8. In the result, appeal of the assessee is allowed.

Order pronounced in the open court on 19th day of February, 2014.

CBDT on Promotions

CBDT Order Promoting CsIT/ DsIT to Chief Commissioners of Income-tax

Vide Order No. 36 of 2014 dated 20.02.2014 the CBDT has promoted officers in the grade of Commissioner / Director of Income Tax to the grade of Chief Commissioner of Income Tax (CCIT) in the Pay Band of Rs. 67,000 – 79,000with immediate effect and actually from the date of assumption of charge of the post and until further orders. The CBDT has also directed the postings of the said promotees

CBDT Order Promoting Addl. CsIT/ DsIT to Commissioners of Income-tax

Vide Order No. 32 of 2014 dated 20.02.2014 the CBDT has promoted several officers in the grade of Additional Commissioner / Additional Director of Income Tax are hereby promoted to the grade of Commissioner of Income Tax (CIT) in the Pay Band 4 – Rs. 37,400-67,000 + Grade Pay of Rs. 10,000/- with immediate effect and actually from the date of assumption of charge of the post and until further orders

Highlights of Interim Budget 2014

Excise Duty

• The Excise Duty on all goods falling under Chapter 84 & 85 of the Schedule to the Central Excise Tariff Act is reduced from 12 percent to 10 percent for the period upto 30.06.20 14. The rates can be reviewed at the time of regular Budget.
• To give relief to the Automobile Industry, which is registering unprecended negative growth, the excise duty is reduced for the period up to30.06.2014 as follows:

·         Small Cars, Motorcycle, Scooters  and Commercial Vehicles       -    from 12 % to 8%

·         SUVs -   from 30% to 24%

·         Large and Mid-segment Cars  – from 27/24% to 24/20%

• It is also proposed to make appropriate reductions in the excise duties on chassis and trailors – The rates can be reviewed at the time of regular Budget
• To encourage domestic production of mobile handsets, the excise duties for all categories of mobile handsets is restructured. The rates will be 6% with CENVAT credit or 1 percent without CENVAT credit.

Service Tax

• The loading and un-loading, packing, storage and warehousing of rice is exempted from Service Tax.
• The services provided by cord blood banks is exempted from Service Tax.

Custom Duty

• To encourage domestic production of soaps and oleo chemicals, the custom duty structure on non-edible grade industrial oils and its fractions, fatty acids and fatty alcohols is rationalized at 7.5 percent.
• To encourage domestic production of specified road construction machinery, the exemption from CVD on similar imported machinery is withdrawn.
• A concessional custom duty 5 percent on capital goods imported by the Bank Note Paper Mill India Private Limited is provided to encourage domestic production of security paper for printing currency notes.

Income Tax

No changes in Direct tax laws in interim budget

-CA. V.M.V.SUBBA RAO

MCA Clarification on Sec 185

MCA issues clarification on section 185 of the Companies Act 2013

MCA after receiving number of representations on the. applicability of Section 185 of the Companies Act, 2013 with reference to loans made, guarantee given or security provided under Section 372A of the Companies Act, 1956, has come out with necessary clarification vide circular No. 3/2014 dated 14th Feb 2014, which will definitely provide much needed relief to corporates. It is clarified that in order to maintain harmony with regard to applicability of Section 372A of the Companies Act, 1956 till the same is repealed and Section 186 of the Companies Act, 2013 is notified, any guarantee given or security provided by a holding company in respect of loans made by a bank or financial institution to its wholly owned subsidiary company, exemption as provided in clause (d) of sub-section (8) of Section 372A of the Companies Act, 1956 shall be applicable. This clarification will, however, be applicable to cases where loans so obtained are exclusively utilized by the subsidiary for its principal business activities. It is noteworthy to mention that the relief is not given with respect to loan given by holding Company to its wholly owned subsidiaries.

CBDT Circular On Application Of Section 14A And Rule 8D

CBDT Circular On Application Of Section 14A And Rule 8D

The CBDT has issued Circular No. 5 of 2014 dated 11.02.2014 in which the issue as to whether disallowance under section 14A and Rule 8D can be made in cases where the corresponding exempt income has not been earned during the financial year has been considered in great detail.

TN CM on Rice is not an Agriculture Produce-ST

Service Tax - Rice Not an Agricultural Produce - Jayalalithaa Slams Union Government

IN an acidic letter to the Prime Minister, Tamil Nadu Chief Minister Jayalalithaa said, "I write to bring to your attention an invidious, discriminatory and completely unjust situation that has arisen as a result of an extremely insensitive and regressive interpretation of certain provisions of the Service Tax legislation, which has made the services like storage and handling associated with Rice liable to levy of Service Tax."

DDT had covered this issue in detail in DDT 2275 - 20.01.2014, where in it was mentioned, "So, your rice is going to be costlier because the Finance Ministry thinks that rice is not an agricultural produce. The Finance Ministry officials who interpreted this legality of what rice should be thankful that the tea boy who is waiting to become PM is not aware of this clarification (yet) - what an effective point it would make in his election speeches!"

DDT had in DDT 2276 - 21.01.2014, explained how rice became a non-agricultural produce. The Chief Minister's letter to the Prime Minister explains the issue almost exactly as DDT did.

Now, it is almost sure that the opposition parties will use this to attack the FM and the Government during the elections. It is unfortunate that a brilliant FM will become a political target for a small thing like Service Tax on storage of rice, which will hardly give him any substantial revenue. He should have exempted this by losing a couple of crores instead of losing many seats for his party.

The CM continues with her vitriol.

This very strange stance taken by the Union Finance Minister, that rice is not an agricultural product, while other cereals including wheat, are agricultural produce and hence exempt from levy of service tax on storage and other services is discriminatory, regressive and indefensible. It smacks of unfairness against people residing in certain regions of the country, especially in the South and the East where rice is the staple food grain consumed. It will raise the price of rice in the open market, particularly at a time when food inflation is already weighing down heavily on the common people.

The interpretation given by the Ministry of Finance defies logic and common sense. From time immemorial, rice has been regarded as an "agricultural commodity".

In a thoughtless, insensitive and discriminatory manner, the Ministry of Finance has proceeded to levy service tax on the storage of Rice alone amongst all food grains. It is yet another instance of how distanced and divorced the UPA Government has become from the concerns of the common people. You will agree with me that this calls for your urgent personal intervention to clarify the position and unambiguously declare rice to be agricultural produce and hence not subject to the levy of service tax for all services related with it. The service tax already levied and collected with effect from 1st July, 2012, should also be remitted and returned to the assessees.

I request you to kindly take urgent action in the matter.

Will the PM/FM react or go with the general trend now - that the UPA Government does not do anything right?

SOURCE:TAXINDIAONLINE

CBDT Circular On Payment Of Dividend Distribution Tax By Mutual Funds

CBDT Circular On Payment Of Dividend Distribution Tax By Mutual Funds

The CBDT has issued Circular No. 6 of 2014 dated 11.02.2014 in which the issue as to whether mutual funds/specified companies are required to pay additional income-tax under sub-section(2) to section 115R of the Act not only on income distributed by way of dividend but also on payments made at the time of redemption/repurchase of units as well as at the time of allotment of bonus units to existing investors has been considered in great detail By-VMVSR

J. Jayalalitha liable for prosecution for non-filing of I-T return

SC : J. Jayalalitha liable for prosecution for non-filing of I-T return

IT : J. Jayalalitha liable for prosecution for non-filing of return

• Pendency of the appellate proceedings is not a relevant factor for not initiating prosecution proceedings under section 276CC of the Act. Section 276CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings except for second part of the offence for determination of the sentence of the offence, the department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach.

• The contention that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not filed the return as per section 139(1) of the Act or following the notices issued under section 142 or section 148 does not arise.

• The declaration or statement made in the individual returns by partners that the accounts of the firm are not finalized, hence no return has been filed by the firm, will not absolve the firm in filing the 'statutory return under section 139(1) of the Act. The firm is independently required to file the return and merely because there has been a best judgment assessment under section 144 would not nullify the liability of the firm to file the return as per section 139(1) of the Act. Appellants' contention that since they had in their individual returns indicated that the firm's accounts had not been finalized, hence no returns were filed, would mean that failure to file return was not willful, cannot be accepted.

No ST on Authorised Person

Press Information Bureau
Government of India
Ministry of Finance

04-February-2014 16:20 IST

No Service Tax Required to be Paid on Services Provided by An Authorised Person or Sub-Brokers to the Member of a Commodity Exchange in Respect of Such Taxable Service
on which the Service Tax was not Being Levied During the Period Commencing from The 10th Day of September 2004 and Ending with the 30th Day of June 2012 in Accordance with the Prevalent Practice

In exercise of the powers conferred by section 11C of the Central Excise Act, 1944 (1 of 1944), read with section 83 of the Finance Act, the Central Government hereby directs that the service tax payable on the services provided by an authorised person or sub-broker to the member of a recognised association or a registered association, in relation to a forward contract, shall not be required to be paid in respect of such taxable service on which the service tax was not being levied during the period commencing from the 10th day of September 2004 and ending with the 30th day of June 2012 in accordance with the prevalent practice.

The Central Government is satisfied that a practice was generally prevalent regarding levy of service tax (including non-levy thereof), under section 66 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as ‘the Finance Act’), on services provided by an authorised person or sub-broker to the member of a recognised association or a registered association, in relation to a forward contract, and that such services were liable to service tax under the Finance Act, which was not being levied according to the said practice during the period commencing from the 10th day of September 2004 and ending with the 30th day of June 2012.

*****

DSM/MJPS/KA

Supreme Court-NCLT

Supreme Court seeks Centre's response on plea against new Companies Act

·         The Supreme Court today sought the Centre's response on a petition seeking to declare as ultra vires of the Constitution some of the provisions of the new Companies Act that aims to create the National Company Law Tribunal (NCLT) and the Appellate Tribunal.

·         A bench headed by Justice A K Patnaik issued notice for January 27 to ministries of Law and Corporate Affairs on the petition filed Madras Bar Association which also sought to strike down provisions of the new Act "designed to provide post retirement employment to numerous civil servants with the ostensible purpose of creating a specialised tribunal dealing with corporate laws".

·         The petition said the provisions of the new Act are "unconstitutional" and violative of the basic structure of the Constitution. "The present tribunal is also structured in such a way that no advocate or chartered accountant would be willing to be selected as a member," the association's plea said.

·         It said the draft rules contain "humiliating conditions" for the chairperson and members of the tribunal and make them "subservient to the minister".

·         "There is an urgent need to strike down Chapter XXVII of the Companies Act, 2013 as it is a shocking attempt to destroy the independence of the judiciary and continue with the pernicious practice of creating tribunals in the place of the high courts and convert them into departments of the respective ministries.

·         "Indeed, there is a strong case for reconsideration of the haste with which such tribunals are created," it said. The petition also mentioned that the Supreme Court has repeatedly emphasised the need to insulate the tribunals from "executive and political interference and influence" but these directions have been ignored and the tribunalisation of the judicial system continues unabated and unchecked.

·         The plea said it was necessary that this petition and the National Tax Tribunal batch of cases, which is pending disposal, be heard by a five-judge or seven-judge bench and clear rules are laid down relating to the creation, composition and functioning of tribunals.

·         "There is a grave danger that the judiciary will be substituted by a host of quasi-judicial tribunals which function as departments of various ministries," it said.

Best Wishes

CA. V.M.V.SUBBA RAO

Case Law on Reverse Charge

Service Tax - Reverse Charge liability paid by Service Provider, should not be demanded again from Service Recipient

We are sharing with you an important judgement of the Hon’ble Mumbai CESTAT, in the case of Umasons Auto Compo Pvt. Ltd. Vs. Commissioner of Central Excise & Customs, Aurangabad [2014 - TIOL – 126 – CESTAT - MUM] on following issue:

Issue:

Whether Service Tax can be demanded again from the Service Recipient under reverse charge, where the same has been paid by the Service Provider and accepted by the Department?

Facts & Background:

M/s Umasons Auto Compo Pvt. Ltd. (“the Appellant” or “the assessee”) was receiving Goods Transport Agency (“GTA”) service from GTA service provider for which they were paying Service Tax to the provider of GTA service. The provider of GTA service deposited the amount of Service Tax to the Department, which was duly accepted by them. Subsequently, the Appellant has availed Cenvat credit of the amount of Service Tax so paid to the provider of GTA service.

The Assessing Officer raised demand for Service Tax on GTA services availed by the Appellant on the ground that in respect of GTA services, service recipient (i.e. the Appellant) is liable to pay Service Tax in terms of Section 68(2) of the Finance Act, 1994 (“the Finance Act”), and if the same has been paid by the service provider, recipient can seek refund of the same. The assessee preferred an appeal before the Commissioner of Customs & Central Excise (Appeals), Aurangabad who has upheld the Adjudication order and confirmed the demand. Hence the Appellant preferred an appeal before the Hon’ble Mumbai CESTAT.

Held:

It is held by the Hon’ble CESTAT that once the amount of Service Tax is accepted by the Revenue from the provider of GTA service, it cannot be demanded again from the recipient of the GTA service.

Therefore, the Hon’ble CESTAT rejected the contention of the Department and decided the case in favour of the Appellant

Regards,

VMVSR                                                                                                               BIMAL JAIN       

CBDT Circular On Extension Of Due Date For Filing Refund Claims

CBDT Circular On Extension Of Due Date For Filing Refund Claims

February 11th, 2014

The CBDT has issued Circuar 04/2014 dated 10.02.2014 pointing out that a large number of returns have become non-est as ITR-V was not furnished within the due date. As a result the refund claims have not been processed. In order to mitigate the hardships of taxpayers pertaining to non-receipt of tax refunds, the CBDT has extended u/s 119(2)(a) the date for filing ITR-V for AYs 2009-10, 2010-11 and 2011-12 to 31.03.2014. The time-frame under the second proviso to s. 143(1) for issuing the Intimation has been extended to 6 months from the end of the month in which ITR-V is received.

Tax Audit Limit Increased to 60

Tax Audit Limit Increased From 45 to 60 for audits conducted during the financial year 2014-15 and onwards. - (11-02-2014)

In view of the enhancement of professional competence of members to perform quality services in an IT-enabled environment, the Council of the Institute at its 331st meeting held from 10th to 12th February, 2014 has decided to increase the "specified number of tax audit assignments" for practicing Chartered Accountants, as an individual or as a partner in a firm , from 45 to 60. The said limit will be effective for the audits conducted during the financial year 2014-15 and onwards. Accordingly, the Council Guidelines No.1-CA(7)/02/2008, dated 8th August,2008 stands amended from 1.4.2014 as under:- In the Council General Guidelines, 2008, the Council Guidelines No.1-CA(7)/02/2008, dated 8th August,2008, in Chapter VI "Tax Audit assignments under Section 44AB of the Income-tax Act, 1961 ", in Explanation given in Para 6.1, in sub-para(a) and sub-para(b), the figure "45" be substituted with the figure "60".

Tax audit limit to increase to 60

Tax audit limit to increase to 60..
Wait for announcement on this page..

AP High Court grants Stays on Audit by CAG of private Company

 

AP High Court grants Stays on Audit by CAG of private Company

PRAYER – to issue a writ order or direction more particularly one nature of Writ of Mandamus declaring the impugned letter dated 09.07.2013 of the 3rd respondent proposing the visit of the officers of the 1st respondent to petitioner premises is highly illegal, improper, unjust, arbitrary, violation of principles of natural justice and violation of fundamental rights and to pass.

HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

WPMP.NO:26799 of  2013

IN

WP.NO:21872 of   2013

M/s. Aditya Housing & Infrastructure Development Company Pvt Ltd

V/s.

1   The Comptroller & Auditor General of India, New Delhi
2   The Accountant General (Commercial and Receipt Audit), Saifabad, Andhra Pradesh, Hyderabad.
3   The Assistant Audit Officer, RACE (Head Quarters) O/o.the Accountant      General (C&RA), Saifabad, Hyderabad

 STAY ORDER

 

Petition under Section 151 of C.P.C. praying that in the circumstances stated in the affidavit filed in the W.P. the High Court may be pleased to direct the respondents to order the officers under their control not visit the premises of the petitioner or demand production of records, pending disposal of WP No. 21872 of   2013 on the file of the High Court.

The Court, while directing issue of notice to the Respondents herein to show cause as to why this petition should not be complied with, made the following order.(The receipt of this order will be deemed to be the receipt of notice in the case).

Change in Definition of "Governmental Authority"

Change in Definition of “Governmental Authority”

Ministry of Finance amends definition of 'governmental authority' under Mega Exemption Notification No. 25/2012-ST dated June 20, 2012; As per amendment, 'Governmental Authority' means board / authority set up either by Act of Parliament / State Legislature or established by Govt, with 90% equity control; Earlier, such authority was required to be set by Govt and Act of Parliament / State Legislature : Finance Ministry Notification.

By VMVSR

[TO BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART II, SECTION 3, SUB-SECTION (i)]

Government of India

Ministry of Finance

(Department of Revenue)

Notification No. 02/2014 - Service Tax

New Delhi, 30^th January, 2014

G.S.R....(E).­­- In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No.25/2012-Service Tax, dated the 20th June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide G.S.R. 467 (E), dated the 20th June, 2012, namely:-

In the said notification, in the paragraph 2, for clause (s), the following shall be substituted, namely:­­–

‘(s) “governmental authority” means an authority or a board or any other body;

(i)  set up by an Act of Parliament or a State Legislature; or

(ii) established by Government,

 with 90% or more participation by way of equity or control, to carry out any function entrusted to a municipality under article 243W of the Constitution;’.

[F.No. 354 /236/ 2013-TRU]

(Raj Kumar Digvijay)

Under Secretary to the Government of India

Note.- The principal notification was published in the Gazette of India, Extraordinary, vide notification No. 25/2012 - Service Tax, dated 20th June, 2012, number G.S.R. 467 (E), dated the 20th June, 2012 and was last amended by notification No.01/2014- Service Tax, dated the 10^th January, 2014 G.S.R. 15(E), dated the 10^th January,2014.

 __________________________________________________________________

 Notification No.  25/2012-Service Tax

New Delhi, the 20^th June, 2012

2.   Definitions (Definition Prior to Amendment)

(s) “governmental authority’’ means a board, or an authority or any other body established with 90% or more participation by way of equity or control by Government and set up by an Act of the Parliament or a State Legislature to carry out any function entrusted to a municipality under article 243W  of the Constitution;  

Change in PAN Procedure-Keep in Abeyance

Ministry of Finance30-January, 2014 18:32 IST

Government Decides to Keep in Abeyance the Decision to Change the Procedure for Pan Allotment Till Further Orders

The Central Board of Direct Taxes (CBDT) has decided to keep in abeyance the decision to change the procedure for PAN allotment till further orders. Accordingly, the operation of Circular No. 11 dated 16.01.2014 issued to PAN service providers has been directed to be put on hold till further orders. In the meantime, the old procedure of PAN application and allotment shall continue. ********* DSM/MJPS/KA (Release ID :102868)

Three Important Judgements On Capital Gains Transfer, Transfer Pricing And Coercive Recovery Of Taxes

The following important judgements are available for download at itatonline.org.

CIT vs. Sadia Shaikh (Bombay High Court At Goa)

S. 2(47)(v): Mere execution of a development agreement is not a “transfer” if possession as per s. 53A of the Transfer of Property Act is not given

Though the development agreement was executed in AY 2003-04, the possession as contemplated in Section 53A of the Transfer of Property Act was in fact not handed over by the assessee to the developer. The agreement only permitted the development to be carried out by the said developer. The entire control over the property was in fact with the assessee inasmuch as the licence to construct the property was also in the name of the assessee and the occupancy certificate was also given to the assessee. Therefore the execution of the agreement could not amount to transfer as contemplated under Section 53A of the Transfer of Property Act. The agreement was subsequently specifically modified and the assessee was liable to pay the capital gain as per the last agreement i.e. for assessment year 2008-09.

See also General Glass 108 TTJ 854 (Mum) & Fibars Infratech (ITAT Hyd) where Chaturbhuj Dwarakadas Kapadia 260 ITR 491 (Bom) is explained/ distinguished. Contrast with Charanjit Singh Atwal (ITAT Chd)

ACIT vs. Casio India Co Pvt Ltd (ITAT Delhi)

Transfer Pricing: Argument, based on BMW, that the AMP adjustment law laid down in L. G. Electronics (SB) does not apply to a full-risk distributor in not correct

In LG Electronics India Pvt. Ltd. vs. ACIT 2013 152 TTJ (Del) (SB) 273 the Special Bench held by majority that incurring of AMP expenses towards promotion of brand, legally owned by the foreign AE, constitutes a `transaction’. The contention that no disallowance could be made out of AMP expenses by benchmarking them separately when the overall net profit rate declared by the assessee was higher than other comparable cases also came to be specifically rejected by the special bench. Resultantly, the transfer pricing adjustment in relation to such AMP expenses was held to be sustainable in principle. In the eventual order, the Special Bench restored the matter to the file of the AO/TPO for fresh determination of Transfer Pricing Adjustment in relation to AMP expenses. In order to enable the determination of correct ALP of AMP expenses, the Tribunal listed out 14 parameters in Para 17.4 of its order which should be examined by the AO/TPO before reaching the final conclusion about the warrant for a TP Adjustment on this score. It is relevant to note that there were 22 interveners in this case, some of which were distributors, while others were licensed manufacturers. While setting out 14 parameters, the Special Bench has held vide first parameter that the AO/TPO should ascertain as to whether the Indian AE is simply a distributor or is holding a manufacturing license from its Foreign AE. The second parameter talks of examining as to whether or not the Indian AE is a full fledge manufacturer and whether it is selling the goods purchased from the Foreign AE as such or is making some value addition to the goods purchased from its Foreign AE before selling it to customers. Thus there is not even a slightest doubt that the special bench order not only applies to a `Manufacturer’, but also extends to a distributor, whether he is a bearing full risk or least risk. Thus, such tests are applicable with full vigor to the extent applicable, to the distributors. There is nothing in the special bench order which restricts its operation only to the `Manufacturers’.

The argument, based on BMW India Pvt. Ltd. vs. ACIT (Del) that as the assessee was a full fledged distributor and as such the benefit of AMP expenses did not spill over to the foreign AE is not acceptable because the Special Bench order in LG Electronics is applicable with full force on all the classes of the assessees, whether they are licensed manufacturers or distributors. The Bench in BMW did not have any occasion to bestow its attention to the correctness of the application by the TPO of the aforesaid parameters laid down in the special bench order as these were naturally not considered by the Officer since he passed his order much before the advent of the special bench order. There is no prize for guessing that Special Bench order has more force and binding effect over the Division Bench order on the same issue.

Dishnet Wireless Limited vs. ACIT (Madras High Court)

S. 220: AO cannot exercise coercive measures to recove tax during the period available for filing an appeal

Against the assessment order, further appeal lies to the Income Tax Appellate Tribunal u/s 253 of the Act and the time for moving the Tribunal is 60 days from the date of receipt of a copy of the order. As the appellate remedy is available to the petitioner, it could be accepted and the authority may thereafter proceed with the matter. However, in the absence of any legal impediment, the respondents have intimated recovery proceedings against the petitioner, when there is reasonable time for him to prefer an appeal. In view of the above, respondents are directed to not to take any coercive steps for recovery against the petitioner, till the appeal time is exhausted. Thereafter, the respondents are at liberty to act in accordance with law for recovery of the amount as per the order of the appellate authority.

See also Treatise On The Law & Practice Of Stay & Recovery and MHADA (ITAT Mum)

Change in PAN Allotment Process

• Procedure for Pan Allotment Process to Undergo a Change with Effect from 3rd February, 2014: The procedure for PAN allotment process will undergo a change with effect from 03.02.2014. From this date onwards, every PAN applicant has to submit self-attested copies of Proof of Identity (POI), Proof of Address (POA) and Date of Birth (DOB) documents and also produce original documents of such POI/POA/DOB documents, for verification at the counter of PAN Facilitation Centres.