1. Review of landmark judgments
Presented by:
Chythanya K.K., B.com, FCA, LLB
Partner, Raghuraman & Chythanya
Advocates, BANGALORE
/ /
Raghuraman & Chythanya
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2. Topics chosen Depreciation Interest Bad debts 43B TDS Concealment
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3. Topics chosen Reassessment Stay of recovery 220(6)
Fresh claim after filing of return
Firm
Deemed dividend
Miscellaneous
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4. Depreciation-Intangible
Goodwill:
Srivatsan Surveyors (P) Ltd. vs. ITO [2009] 125 TTJ (Chennai) 286 : right in restrictive covenant (non compete) is not an intangible asset under sec 32(1)(ii)
No : GURUJI ENTERTAINMENT NETWORK LTD vs. ACIT (2007) 108 TTJ (DEL) 180
No : Bharatibai Vyas v. ITO 97 ITD 248 Ahm
No : RG Keswani v. ACIT 308 ITR-AT 271 Mum
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5. Depreciation-Intangible
Skyline Caterers (P) Ltd. vs. ITO [2008] 118 TTJ (Mumbai) 344
M/s ONGC Videsh Ltd Vs DCIT 2009-TIOL-758-ITAT-DEL : The right granted to the assessee by way of licence to have an access and to carry on of business of exploration and development of mineral oil is an asset entitled to depreciation u/s.32(1)(ii) of the IT Act.
Bosch Ltd Vs CIT 2009-TIOL-736-ITAT-BANG.pdf : ‘Business information' under the category of 'other identifiable intangibles (goodwill) is eligible for depreciation
Hindustan Coca Cola Beverages Pvt Ltd Vs DCIT 2009-TIOL- 650-ITAT-DEL. Intangible assets like marketing and trading reputation, trading style and name, marketing and distribution territorial knowhow and information of territory although called as goodwill will qualify for depreciation
Kotak Forex Brokerage Ltd Vs ACIT 2009-TIOL-711-ITAT- MUM.pdf – Consideration paid of KOTAK name is goodwill eligible for depreciation
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6. Depreciation-Stock exchange card
M/s Techno Shares & Stocks Ltd Vs CIT TIOL-67-SC-IT
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7. Depreciation-Software
SC TO DECIDE ON SOFTWARE UPGRADE SPEND TAX LIABILITY : Notice issued on
Revenue :
Southern Roadways Ltd. [2008] 304 ITR 84 (Mad)
G.E. Power Services India Ltd. [2008] 300 ITR 420 (Delhi)
G. E. Capital Services Ltd. [2007] 164 Taxman 46 (Delhi)
Arch Finance Ltd. [2007] 165 Taxman 188 (ITAT DELHI)
Media Video Ltd v JCIT (2002) 122 Taxman Mag 28
IBM India LTD 105 ITD 1 (BANG.)
Capital :
M/s Millenium Infocom Ltd 2008-TIOL-481-ITAT-MAD
Arawali Construction (2002) 124 Taxman 146 (Raj)
Case to case examination is required : Amway India Enterprises vs. DCIT (2008) 114 TTJ (Del) (SB) 476
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8. Depreciation-Building
Purchase of commercial space – cost attributable to undivided interest in land is not eligible for depreciation : DCIT v. Capital Cars P. Ltd. [2007] 295 ITR (AT) 224 (Delhi)
Relying on Alps Theatre’s case 65 ITR 377 SC
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9. Depreciation-Lease Circular no 9/ 23.3.1943 [HP]
Accounting Standard 19
Circular No.2 of 2001, dated February 9, 2001
ABB LTD v. IFCI (2006) 154 TAXMAN 512 (SC)
J. M. Shares & Stock broker vs. DCIT (2007) 109 TTJ (Mumbai) 311
CIT v. Shree Rajasthan Syntex Ltd. [2009] 313 ITR 231 (Raj) HC
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10. Depreciation-Lease See also
Circular 760 dt for Interest Tax
Sundaram Finance Vs State of Kerala 17 STC 489 SC
CIT v . Motor & General Finance 327 ITR 530 Delhi
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11. Depreciation-Lease
Mere inclusion of Rs. 12,50,639 in the total business income is not the determinative factor for deciding whether trucks were used by the assessee during the relevant year in a business of running them on hire : CIT vs. Gupta Global Exim P. Ltd. (SC) 305 ITR 132
Higher rate of depreciation is also admissible when motor lorry is used by assessee in his own business of transportation of goods on hire : S.C. Thakur & Bros. [2009] 180 Taxman 348 (Bom.)
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12. One business of Manufacture
Depreciation-Lease
Depreciation
-Lease
Situation 1
Manufacture
One business of Manufacture
No higher rate
Leasing
Situation 2
Business 1
Business 2
Higher rate
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13. Interest Proviso to section 36(1)(iii) - retrospective
The import of the proviso to section 36 (1) (iii) is that the interest paid on the capital borrowed for the purpose of acquisition of an asset till the date such an asset is first put to use shall not be allowed as deduction. This is borne out as a converse proposition in Explanation 8 to section 43 (1) and a combined reading of section 36 (1) (iii) and section 43 (1) shows that the same is in consonance with the law laid down by the Supreme Court in Challapalli Sugars Ltd. v. CIT [1975] 98 ITR 167
CIT v. Vardhman Polytex Ltd. 299 ITR 152 (P&H) (FB)
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14. Interest Proviso to section 36(1)(iii) - Prospective
ALANKAR BUSINESS CORPORATION LTD vs. DCIT (2006) 157 TAXMAN 232 CHENNAI
DCIT v. Core Health Care Ltd. [2008] 298 ITR 194 (SC)
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15. Interest Interest free advance to sister concerns
In the present case, the assessee borrowed the fund from the bank and lent some of it to its sister concern (a subsidiary) as interest free loan. The test, in such a case is really whether this was done as a measure of commercial expediency.
The decisions relating to section 37 of the Act will also be applicable to section 36(1)(iii) because in section 37 also the expression used is “for the purpose of business”. It has been consistently held in the decisions relating to section 37 that the expression “for the purpose of business” includes expenditure voluntarily incurred for commercial expediency, and it is immaterial if a third party also benefits thereby.
S.A.BUILDERS LTD vs. CIT (2007) 288 ITR 1 (SC)
CIT Vs Chandulal Keshavlal 38 ITR 601 SC
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16. Bad debts Southern Technologies Ltd vs. JCIT [2010] 320 ITR 577(SC)
TRF Ltd. CIT [2010] 323 ITR 397 (SC)
Vijaya Bank v. CIT and another [2010] 323 ITR 166 (SC)
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17. 43B
No distinction between employer’s contribution and employees’ contribution
Hitech India P. Ltd. V. UOI (1997) 227 ITR 446 (AP)
C.I.T. v. Madras Radiators and Pressings Ltd. (Mad.) [2003] 264 ITR 620 (Mad.)
CIT v. Sabari Enterprises [2008] 298 ITR 141 (Karn) HC approved in CIT Vs Alom Extrusions Ltd 319 ITR 306 SC
Rule 30, 32 and 38 of PF Scheme
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18. TDS Kanchangang Sea Foods Ltd. v. CIT (SC) 325 ITR 540
Payment in kind
Kanchangang Sea Foods Ltd. v. CIT (SC) 325 ITR 540
HH Sri Rama Verma v. CIT (1991) 187 ITR 308 SC : “Any sums paid” contemplates payment of an amount of money.
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19. TDS
Pass through cases
Loans are taken in individual capacities by directors but cheques taken by them in name of company and transferred to their accounts on same day. Repayment of loan and interest was routed through company. Company is bound to deduct tax at source : CIT vs. Century Building Industries P. Ltd. (2007) 293 ITR 194 (SC)
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20. TDS
Credit to account
Fact that the credit to any account is to be deemed to be credit to the payee’s account also presupposes that payee can be ascertained. Therefore, this deeming fiction can only be activated when the identity of the payee can be ascertained : IDBI vs. ITO (2006) 104 TTJ 230 (MUMBAI)
Circ no.3 of 2010 dated TDS under sec 194A is not required in the absence of constructive credit
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21. Section 40a(ia) Constitutional validity upheld in
Tube Investments Of India Ltd Vs ACIT 185 Taxman 438 (Mad.)
Dey’s Medical (U.P.) P. LTD. v. UOI [2009] 316 ITR 445 (ALL) HC
Rakesh Kumar & Co. v. Union of India [2009] 178 Taxman 481 (Punj. & Har.)

22. TDS
Service tax
A service provider is merely acting as an agent of the Government, and is not entitled to claim deduction on account of service-tax and therefore the analogy of sales- tax, excise duty, is not applicable : ACIT vs. Real Image Media Technologies (P) Ltd. [2008] 116 TTJ (Chennai) 964 & CIT vs. Noble and Hewitt (I) P. Ltd. (Delhi – HC) 305 ITR 324
Circ 4/2008, dated April 28, : Service tax paid by the tenant does not partake of the nature of “income” of the landlord. The landlord only acts as a collecting agency for the Government for collection of service tax.
Circular F.No. 275/73/2007-IT(B), dated [2008] 172 Taxman (BN) : Circular 4 has no application to section 194J
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23. TDS Reimbursement of expenses
Reimbursement of expenses is also liable to TDS as per CBDT Circ No. 715 dated
No as per ITO Vs Dr Willmar Schwabe India (P.) Ltd. (95 TTJ 53) (Delhi ITAT)
CIT vs. Industrial Engg. Projects P.Ltd. (2003- TIOL-247-HC-DEL-IT)
CIT v. Information Architects [2010] 322 ITR 1 (Bom) HC
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24. TDS
Advance rental
Amount described in lease agreement as security deposit-agreement providing for reduction of security deposit every six months by amount of rent payable-security deposit was in effect advance rent-tax to be deducted at source on entire security deposit : CIT vs. Reebok India Company (2007) 291 ITR 455 (Delhi)
Circular No.5 of 2001
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25. TDS Proof to be collected by employer
LTC / Conveyance Allowance - assessee-company gives LTC benefits to its employees. Revenue insists on collecting evidence towards actual utilisation of LTC facility. Sec 192 does not cast any obligation on the employer to collect and examine supporting evidence to establish declaration given by individual employees for having availed the facility
CIT Vs ITI, Limited 2009-TIOL-08-SC-IT (L & T)
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26. TDS
CIT vs. Eli Lilly and Co. (India) P. Ltd. [2009] 312 ITR 225 [SC] As far as the period of default is concerned, the period starts from the date of deductibility till the date of actual payment of tax. Therefore, the levy of interest has to be restricted for the above stated period only. It may be clarified that the date of payment by the concerned employee can be treated as the date of actual payment.
Hindustan Coca Cola Beverages P Ltd., v. CIT 293 ITR 226 SC
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27. Concealment The word ‘concealment’ has ‘deliberateness’ built into it
K.C. Builders v. ACIT 265 ITR 562 (S.C.)
G.L. Didwania v. ITO [1997] 224 ITR 687 (SC)
Dilip N Shroff v. JCIT [20O7] 291 ITR 519 (SC)
In Kartar Singh vs. State of Punjab JT (SC) 432, p. 466: 1994 (3) SCC 569
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28. Concealment
Willful concealment is not an essential ingredient for attracting the civil liability : DILIP N. SHROFF V. JCIT [20O7] 291 ITR 519 (SC)
Overruled in Union of India Vs M/s Dharmendra Textile Processors (Dated: September 29, 2008) : TIOL-192-SC
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29. Dharmendra diluted
CC & CCE Vs M/s Rajasthan Spinning & Weaving Mills (Dated: May 12, 2009) [2009] 180 Taxman 609 (SC)
CIT v. Atul Mohan Bindal [2009] 317 ITR 1 (SC) : It goes without saying that for applicability of Section 271(1 )( c), conditions stated therein must exist
CIT v. Reliance Petroproducts Pvt. Ltd. [2010] 322 ITR 158 (SC)
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30. Mens rea
Dharmendra has not considered following direct decisions by benches of three judges
Anwar Ali 76 ITR 696
Hindustan Steel 83 ITR 26
DM Manasvi 86 ITR 557
Ananthram Veersinghaih 123 ITR 457

31. Mens rea
CIT v. Haryana Warehousing Corporation [2009] 314 ITR 215 (P&H)
The issue which arose for determination in Dharmendra was, whether under sec 11AC of CE Act, 1944, penalty for evasion of payment of tax had to be mandatorily levied irrespective of whether non levy was an intentional or innocent omission.
In other words, the apex court was examining a proposition, whether means rea was an essential ingredient before penalty under section 11AC could be levied.
The issue of mens-rea does not arise when the ingredients before any penalty can be imposed on an assessee under section 271 (1) (c) of the Act are not made out
Thus viewed, the judgment of Dharmendra, besides being a judgment under a different legislative enactment, is totally inapplicable to the facts and circumstances of this case.
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32. Penalty v. Loss Virtual Soft 289 ITR 83 SC
Gold Coin Health Food P. Ltd [2008] 304 ITR 308 (SC)
JCIT v. Saheli Leasing and Industries Ltd. [2010] 324 ITR 170 (SC)
Nalwa Sons Investment Ltd. 327 ITR 543 Delhi
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33. Reassessment Rajesh Jhaveri 291 ITR 500 SC
Kelvinator of India 320 ITR 561 SC
CIT v. Greenworld Corporation v. ITO and another [2009] 314 ITR 81 (SC)
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34. Reassessment – Procedure
GKN Driveshaft 259 ITR 19 SC
ACIT and another v. Hotel Blue Moon [2010] 321 ITR 362 (SC)
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35. Stay of recovery Section 220(6)
Valvoline Cummins Limited vs. DCIT (Delhi – HC) 307 ITR 103
Soul v. DCIT [2010] 323 ITR 305 (Delhi) HC
Subhash Chander Sehgal v. DCIT [2008] 173 Taxman 412 (Delhi)
Lakshmi Machine Works Ltd. v. DCCT [2008] 17 VST 32 (Mad) HC
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36. Stay of recovery Nos.96, dated august21, 1961
Circular 530 dt
Circular 589 dt
1914, dated December 2, 1993
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37. Power of CIT(A) for granting stay
Smita Agrawal (Ind.) v. CIT [2009] 184 Taxman 59 (All) 321 ITR 491
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38. Fresh claim after filing of return
In respect of deduction claimed after return filed, assessing authority has no power to entertain claim made otherwise than by way of revised return : GOETZE (INDIA) LTD. v. CIT [2006] 284 ITR 323 (SC)
The Apex Court has not laid down as a matter of law that there is bar for the Assessing Authority to entertain the claim for deduction otherwise than by filing a revised return : UNIVERSAL SUBSCRIPTION AGENCY (P) LTD vs. JCIT (2007) 159 TAXMAN 64 (ALL.)
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39. Claims de hors the return
When the Assessee has already made a claim in respect of a particular deduction, during assessment proceedings, he would have the right to correct the right figure and it cannot be said that it is a fresh case to be hit by Goetze case : TVS Motors Company Ltd 2009-TIOL-448-ITAT-MAD.pdf
Goetze case is not applicable for enhancement of claim originally made in the return : Hero Honda Finlease Ltd. (2008) 115 TTJ (Del) (TM) 752
Goetze case applies only to claim of deduction and not to exemption which is statutorily available ACWT vs. Ku. Ragini Sanghi [2009] 120 TTJ (Ind) 1116, 123 ITD 384

40. Claims de hors the return
Goetze does not impinge on the power of ITAT : Jai Parabolic Springs Ltd. [2008] 172 Taxman 258 (Delhi) & M/s Modi Xerox Ltd Vs JCIT, Meerut 2008-TIOL-635-ITAT-DEL
Goetze could have been applied had the AO/CIT (A) refused to entertain the claim made without filing a revised return. However, since the claim has been examined in detail and since even the powers of Tribunal are not restricted as held in the very said case of Goetze (India) Ltd. (supra), the ground raised may be entertained: SNC-Lavalin/Acres INC. 110 TTJ (Del) 13

41. Firm
Salary to partner is allowable deduction to the extent mentioned in s. 40(b) if it was so authorised by the deed of partnership and there is no need to quantify the amount in the deed itself as per ACIT vs. Suman Construction [2009] 121 TTJ (Pune) 847
Firm paying salary to HUF as a working partner : CIT v. Devanand Automobiles [2008] 304 ITR 50 (Karn), CIT v. Golden Touch 138 Taxman 190 (Mad.) & ITO v. Vegunta Surya Prakasa Rao Sons & Co. (Visakhapatnam) [2004] 88 ITD 322 (Visakhapatnam) relying on 229 ITR 458 SC
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42. Firm
The assessee was not carrying on any other business and had no other source of income. Thus, whatever income arising to the assessee was business income and, hence, computation was in accordance with Chapter IV – D. Thus, it could be said that such cash credit formed part of book profit for the purpose of computation of remuneration. It is necessary to include such cash credit in the book profit for the purpose of allowing remuneration to the partners which was authorized by and in accordance with the terms of partnership deed : DEEPA AGRO AGENCIES v. ITO (2006) 154 TAXMAN – MAGAZINE 80 (BANG.)
Same was held in CIT v. S.K. Srigiri and Bros. [2008] 298 ITR 13 (Karn) HC
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43. Section 187
Dissolution or change in constitution - Two partners retiring and two new partners inducted on same day where business continued under same –is a case of change in constitution. Deed calling it a dissolution is not material as per CIT and another v. Bharat Steel Rolling Mills [2009] 313 ITR 406 (All) HC
Contra : CIT v.Ketan Chemicals [2006] 281 ITR 244 Guj
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44. Capital gains Part IX conversion – Exigible to capital gains
Amin Machinery (P) Ltd. vs. DCIT [2007] 111 TTJ (Ahd) 892
The question of taxability of capital gains in case of Part IX conversion is a question of law as per CIT v. Well Pack Packaging [2009] 309 ITR 338 (SC)
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45. Deemed dividend Deemed dividend to be taxed in hands of
Recipient : Circular No. 495 dated September 23, [1987] 168 ITR (St.) 87
Interested person : CIT Vs. MUKUNDRAY K. SHAH (2007) 290 ITR 433 (SC)
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46. Miscellaneous
On repairs - Saravana Spinning Mills 293 ITR 301 SC, CIT v. Sri Mangyakarasi Mills P. Ltd. [2009] 315 ITR 114 (SC) and CIT v Mahalakshmi Textile Mills Ltd. [1967] 66 ITR 710 [SC]M
On subsidy - Ponni Sugars and Chemicals Ltd ITR 392 (SC) & Sahney Steel and Press Works Ltd and others V CIT (1997) 228 ITR 253
On waiver of interest at end of year - Sarabhai holdings P. Ltd. 307 ITR 89 (SC)
On mutuality – Canara Bank Golden Jubilee Staff Welfare Fund 308 ITR 202 Kar (SLP dismissed by SC in 320 ITR-St
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47. Miscellaneous
7. On manufacture – India Cine Agencies 308 ITR 98 SC, M/s. Oracle Software's case ( TIOL-04-SC-IT ) & 2009-TIOL-127-SC-IT- LB, ITO, Udaipur Vs M/s Arihant Tiles & Marbles (P) Ltd (Dated: December 02, 2009)
8. On appeal by State – CK Gangadharan 304 ITR 61 SC and JK Charitable Trust 308 ITR 161 SC
9. Liquidated damage is not income - CIT, Gujarat Vs M/s Saurashtra Cement Limited TIOL-49-SC-IT
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48. Q&A
Thanks
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