Interest income is “profit derived from business of undertaking” eligible for 10A/10B benefit – Karnataka HC
CIT v Motorola India Electronics (P) Ltd. (ITA NO.447 OF 2007) (Kar HC) (dated 11.12.2013)
The assessee had outstanding borrowings by way of External Commercial Borrowings. The borrowings were for the business of STP undertaking. The Government had formulated a policy on pre-payment and the policy stated that approval of pre-payment would be granted only to the extent of 10% of the outstanding loan. Hence, it is required to temporarily park the funds, until the date of repayment, and also keep paying the interest on the loans. The assessee took a business decision to place these funds with various sister concerns as inter-corporate deposits.
The assessee claimed that the interest income as derived from the business of export of articles or things or computer software and the same is eligible for exemption under section 10A of the Act. The AO disallowed the exemption claimed with respect to the interest income. (more…)
ACIT v Casio India Co P Ltd I.T.A .No.-6135/Del/2012 (Delhi ITAT) Dated 13/12/2013
Assessee is a wholly owned subsidiary of Casio and Computer Company Ltd., Japan (hereinafter called `Casio Japan’). The assessee distributes watches and consumer information products and other related products of Casio Japan, in India. The assessee entered into certain international transactions with Casio Japan which were benchmarked on ‘Transactional Net Margin Method’ (TNMM). On a reference made by the AO, the Transfer Pricing Officer (TPO) noticed that the assessee incurred a certain sum on the Advertising, Marketing & Promotion (AMP) expenses. Out of that, a sum of Rs.2,63,50,982/- was held to be towards developing marketing intangibles for the Associated Enterprise (AE). As against that, only a sum of Rs.1,02,13,645/- was reimbursed by the AE. Adding in mark-up of 14.93% on the differential amount, the TPO proposed adjustment accordingly. (more…)
If it is proved that goods are actually purchased (even though the parties are bogus), only resultant profit is taxable – Guj HC
CIT v Bholanath Poly Fab (P.) Ltd  40 taxmann.com 494 (Gujarat)
Assessee is engaged in the business of trading in finished fabrics. For the assessment year 2005-06, the Assessing Officer held that the purchases worth Rs. 40,69,546 were unexplained. Assessing Officer had issued notice to all parties from whom such purchases were allegedly made. Such notices were returned unserved by the postal authorities with the remark that the address was incomplete. He, therefore, disallowed such expenditure claimed by the assessee and computed the total income of Rs. 41,10,187. The Commissioner rejected the appeal, upon which the assessee went in further appeal before the Tribunal. The Tribunal, substantially allowed the assessee’s appeal.
Rajasthan High Court in the case of CIT(TDS) vs. Rajashthan Urban Infrastructure held that the words “any sum paid” used in Section 194J of the Income Tax Act, relate to “fees for professional services or fees for technical services”. In terms of the agreement, the amount of Service Tax was to be paid separately and was not included in the fees. Accordingly, it was decided that if Service tax is payable in addition to professional/ technical fees under the contract, the withholding tax will be restricted to the professional fees.
The CBDT vide CBDT Circular No. 1 of 2014 dated 13.01.2014 has decided in exercise of powers u/s 119 that wherever the terms of the agreement/ contract between the payer and the payee, the service tax component comprised in the amount is indicated separately, tax shall be deducted at source under Chapter XVII-B of the Act on the amount paid/payable without including such service tax component.
The aforesaid circular should apply to all kinds of payments made to residents.
CIT v Gujarat State Road Transport Corporation TAX APPEAL NOS. 1711 & 2577 OF 2009, 925, 949, 965, 1655, 2365, 2378 & 2644 OF 2010 & 814 OF 2011 AND 637 OF 2013 (dated DECEMBER 26, 2013)
Assessee is a Corporation run by State of Gujarat, engaged in the business of public transportation. During the course of assessment proceedings, it was found that there was shortfall in remittance of provident fund collected from the employees which was required to be treated as income of the assessee as per the provisions contained in section 2(24)(x) read with section 36(1) (va) of the IT Act. There was also shortfall in the fund of remittance of assessee Corporation, which according to the Assessing Officer was required to be disallowed under section 43B of the IT Act. The AO made an addition of the shortfall in employees’ contribution as well as employers’s contribution to PF. (more…)
CIT v Bhargav Book Depot  40 taxmann.com 213 (Allahabad)
Assessee deals in printing and publication of books/diaries and sale thereof. During the course of assessment proceeding, the AO found that the assessee had sold Bhargav Dictionary though its sister concern “Sri Ganga Pustkalay” and had offered a discount of 3% whereas it had offered a discount of 0.5% less to other whole sellers . The AO further found that the sale price of dictionary was lesser by 18% when it was sold to M/s Sri Ganga Pustakalay. The difference of half percent was disallowed under Section 40-A (2) (a) and (b) of the Act and addition of Rs.15,97,401 was also made under Section 40-A (2) (a) and (b) of the Act. The matter was carried in appeal. The Commissioner of Income Tax (Appeals) has accepted the claim of the assessee and deleted the addition, which order has been upheld by the Tribunal on an appeal preferred by the Revenue. (more…)
S. 40(a)(ia) – CBDT issues circular providing “Departmental View” contradicting Merylin Shipping ruling
The CBDT has issued Circular (No: 10/DV/2013) dated 16/12/2013 providing ‘Departmental View‘ on the controversial issue surrounding section 40(a)(ia) of the Income-tax Act, 1961.
In case of Merilyn Shipping & Transports v Addln CIT / 136 ITD 23 (VISAKHAPATNAM), it was held that:
“The word ‘payable’ used in section 40(a)( ia) is to be assigned strict interpretation, in view of the object of Legislation, which is intended from the replacement of the words in the proposed and enacted provision from the words ‘amount credited or paid’ to ‘payable’. Hence, it has to be concluded that provisions of section 40(a )(ia) are applicable only to the amounts of expenditure which are payable as on the date 31st March of every year and it cannot be invoked to disallow expenditure which has been actually paid during the previous year, without deduction of TDS.” (more…)
Deduction u/s 54-54F allowed if delivery of house could not be obtained but entire payment is made – Del ITAT
ITO v SMT BINA GUPTA [ITA No.4074/Del/2012 (dtd 18/10/2013) (Delhi ITAT)]
Assessee sold house on 13.06.2008 on which long term capital gain was shown at Rs.31,00,369. Deduction u/s 54 was claimed for entire capital gain on a/c of investment in house. Assessee has also sold a plot at Sradhapuri, Meerut on 10.11.2008 on which Long Term Capital Gain is shown at Rs.19,89,914/-. Deduction u/s 54F has been claimed for this entire amount on a/c of investment in the same houseas mentioned above.
The AO found that the assessee had advanced monies to the builder on agreement and deposited money in capital gains scheme. The AO held that since no house had been purchased till the date of assessment order as two years period had lapsed, deduction u/s 54 and 54F was to be disallowed. (more…)
eBay International AG v DDIT [IT APPEAL NO. 8907 (MUM.) OF 2010 dated 11.09.13] Mumbai ITAT
The Assessee is a company incorporated under law of Switzerland and is a tax resident of Switzerland. The assessee operated India specific websites (www.ebay.in and www.b2motors.ebay.in) that provides an online platform for facilitating the purchase and sale of goods and services to users based in India. The assessee has entered into marketing support agreements with eBay India and eBay Motors which are eBay group companies, for availing certain support services in connection with its Indian specific websites. Assessee earned revenues amounting to Rs. 12,00,39,045/- from the operations of these websites during the year.
The assessee contended that these revenues are taxable as business profits in India as per the provisions of Article 7 of the Treaty only if the assessee has a permanent establishment (‘PE’) in India as per provisions of Article 5 of the Treaty i.e. DTAA. The assessee contended that did not have any PE in India and as such no amount would be taxable in respect of the consideration received from the operations of the above mentioned websites. (more…)
D. H. Securities Pvt. Ltd vs. DCIT (ITAT Mumbai) (Third Member)
The assessee claimed that as it was engaged in the business of trading in shares, its main object is to earn profit on purchase and sale of shares and not to earn dividend income from such shares. It claimed that the accrual of tax-free dividend on such shares was merely incidental to the holding of shares as stock-in-trade and that no disallowance could be made u/s 14A and Rule 8D. It also claimed that though the assessee had not incurred any direct or indirect expenditure to earn the said dividend, the AO had made the disallowance on a presumptive basis. The Division Bench referred the dispute to a Third Member in view of the difference of opinion between the Benches. Before the Third Member, the assessee relied on CCI Ltd 71 DTR (Kar) 141 , India Advantage Securities, Yatish Trading etc in which the law had been laid down that s. 14A & Rule 8D does not apply to securities held as stock-in-trade. The department reied on Godrej & Boyce Manufaturing Co 328 ITR 81 (Bom) (where it was held that Rule 8D is mandatory) and Daga Capital 117 ITD 169 (Mum) (SB) (where it was held that s. 14A applies to stock-in-trade). (more…)