CASE LAWS

2016-TIOL-792-ITAT-AHM

ARDOR INTERNATIONAL PVT LTD Vs ACIT: AHMEDABAD ITAT (Dated: May 2, 2016)

Income tax - Sections 139(5), 143(3), 154 & 155(14)

Keywords - delay in issuance of TDS certificates - claim for TDS credit - expiry of time for filing revised return - filing of origional return & rectification application

Whether an assessee who has not claimed TDS while filing its return, as the requisite TDS Certificates were not in its possession due to the failure of the deductor to issue such Certificates till the due date of filing of return, can subsequently claim the TDS credit which has been shown in its return, by filing an application u/s 154 - YES: ITAT

Case remanded

INDU LATA RANGWALA Vs DCIT : DELHI HIGH COURT (Dated: May 18, 2016)

Income Tax – Sections 142(1), 143(2) & 148

Keywords - reopening of assessment, escapement of income, change of opinion, intimation, forming of opinion, assessment

Whether an intimation under Section 143 (1) (a) can be treated to be an order of assessment – No: HC

Whether AO can form reasons to believe that income has escaped assessment by examining the very return and/or the documents accompanying the return where reopening is sought of an assessment in a situation where the initial return is processed under Section 143 (1) – Yes: HC

Assessee’s Writ petition dismissed

CIT Vs DLF HILTON HOTELS: DELHI HIGH COURT (Dated: May 10, 2016)

Income tax - business expenses - hospitality business - income accrued on FDs - interest income - project management services & time deposits

Whether it is open to the AO to disallow the interest income accrued on time deposits by taking into account only 'Journal' entries credited in the books of account, where the assessee has made credit journal entries upon accrual of interest for purpose of closing of quarterly results and the entries were subsequently reversed and the interest actually received has been offered to tax - NO: HC

Revenue's appeal dismissed

PANKAJ MAHAJAN Vs CIT: DELHI HIGH COURT (Dated: May 3, 2016)

Income tax - Section 68

Keywords - cash deposit - content of will - declaration of executor - deposit in tranches - inheritance from deceased mother - source of payment - subterfuge & quantum of stridhan

Whether a proprietorship concern does not have a separate legal identity other than its sole proprietor and an assessee carrying on such business is required to maintain books of accounts necessary for his/her assessment - YES: HC

Whether huge cash deposits made by an assessee in his bank account in excess of the stipulated amount, which is claimed to have been received upon bequest of his deceased mother, is liable to be treated as a subterfuge, in case such amount was claimed to have been kept in currency form since the time of her marriage till her death, and the same was deposited after a long span of time - YES: HC

Whether where the Assessee offers no explanation as to the nature and the source of any sum found credited in its books or the explanation offered by him is not satisfactory in the opinion of the AO, the sum so credited may be charged to tax as an income of the Assessee - YES: HC

Assessee's appeal dismissed

STATE OF GUJARAT Vs SUNDHA TRADERS : GUJARAT HIGH COURT (Dated: April 01, 2016)

Gujarat VAT Act - Sections 68 & 69

Keywords - carrying of transit pass - crossing from check-post - liability of transporter - penalty upon dealer - release of goods & seizure of truck

Whether powers given to the officer-in-charge of a check-post u/s 68 can be exercised at the time, when the truck has already crossed the check-post and has entered the State - NO: HC

Whether it is the transporter's liability u/s 69(1) of GVAT Act to obtain a transit pass from the check-post authority at the time of entry of the vehicle in the State and not of the owner and hence, whatever may be the consequences of the lapses on the part of the transporter, the owner of the goods cannot be made answerable - YES: HC

Whether there can be a breach of section 69 at the stage where the truck is stopped at the first check-post after its entry into the State - NO: HC

Whether it is possible to exercise powers under Section 68 & 69 of GVAT Act simultaneously in case, where the trucks which had already crossed the check post without obtaining transit passes, had been intercepted by the Anti Corruption Bureau and brought back to the check post - NO: HC

Revenue's appeal dismissed

JINDAL STEEL AND POWER LTD Vs UoI : ORISSA HIGH COURT (Dated: May 2, 2016)

CX - In the writ petition there are several contentions raised relating to dutiability of the product of the petitioner requiring adjudication of facts - Moreover, it is available from the petition that the Commissioner of Central Excise had fixed for spot visit but without going to the said Mines has passed the impugned order, thus, requiring further materials to be gone through by the fact finding authority - If the facts required to be decided will prove the way to decide the issues arising between the parties, same can only be decided either by the Commissioner of Central Excise or by the appellate authority but the same cannot be entertained in the writ petition - Since efficacious remedy by way of filing appeal before the CESTAT is available, petitioner directed to challenge the impugned order before the appellate authority u/s 35B of the Act – on an earlier occasion too, on similar issue, High Court had dismissed the writ petition directing the parties to file appeal as the alternative remedy is available - In view of hardship pleaded, petitioner directed to deposit 5% of the demand of duty as pre-deposit under Section 35-F of the Act and rest of the demand of duty, interest and penalty will remain in abeyance & CESTAT will not insist for further deposit – Writ petition disposed of: High Court [para 20, 22, 23]

Petition disposed of

2016-TIOL-962-HC-P&H-CX

CCE Vs KAPOOR LAMP SHADE COMPANY: PUNJAB AND HARYANA HIGH COURT (FACTORY SHOP) (Dated: May 2, 2016)

CX – Manufacture – s.2(f) of CEA, 1944 - The question whether assembly of different parts of decorative lamp shades and chandeliers amounts to manufacturing has been answered by the Tribunal against the Revenue on the strength of case laws, laying down that assembling of different manufacturing items does not amount to a new manufacturing process and thus, M/s Kapoor Lamp Shade Company (Factory Shop) does not manufacture any lamp shades or chandeliers - Tribunal has held and rightly so that procuring the manufactured items and packing them with its own brand name by the assessee, does not amount to creation of a new product which may invite duty – Tribunal has also held that the demand is barred by limitation as the department was fully aware of the existence of the assessee's unit and its activities – no question of law is involved requiring adjudication by High Court – Revenue appeal dismissed: High Court [para 5, 6, 7]

Appeal dismissed

2016-TIOL-961-HC-P&H-CX

CCE Vs J D AUTO ELECTRICAL PVT LTD : PUNJAB AND HARYANA HIGH COURT (Dated: May 6, 2016)

CX – Tribunal had dismissed the Revenue appeal by an order which does not satisfy the test of a reasoned and speaking order – Tribunal being a final fact finding authority was required to deal with all aspects of facts and law and then record its conclusions based thereon – no legally justifiable reasons have been recorded by Tribunal while dismissing appeal of Revenue – Order does not qualify as being a reasoned speaking order as enunciated by apex Court in Kranti Associates case (2010) 9 SCC 496 – Order set aside & Matter remanded to Tribunal: High Court [para 10, 11]

Matter remanded