corporate and professional update december 22, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 22, 2015

INCOME TAX ACT

SECTION 9

INCOME – DEEMED TO ACCRUE OR ARISE IN INDIA

Interest : Where assessee-company paid interest on FCCBs issued by it to bond-holders outside India, said income squarely fell under exclusion clause of sub-section (1)(v)(b) of section 9, and, consequently, it could not fall within ambit of section 5(2) – [2015] 64  114 (Ahmedabad)

SECTION 10(10D)

INSURANCE POLICY, SUM RECEIVED UNDER

Keyman Insurance Policy : Stipulations in IRDA circulars have no role to play in deciding whether premium on insurance policies paid are covered by scope of ‘keyman insurance policy’ under section 10(10D) – [2015] 64 139 (Amritsar – Trib.)

SECTION 28(i)

BUSINESS INCOME – YEAR IN WHICH TAXABLE

Advances : Where assessee-contractor was regularly showing mobilization advance received against contracts in subsequent assessment year against bills raised in that year on completion of work and revenue had not raised any objection to such treatment, mobilisation advance received in relevant year could not be treated as revenue receipt of relevant year – [2015] 63  335 (Gujarat)

SECTION 45

CAPITAL GAINS – CHARGEABLE AS

Business income v. capital gain – Share dealing : Where assessee maintained two separate accounts in respect of its dealing in mutual funds and shares, i.e., one in respect of its trading and other in respect of its investment, and there were no allegations of shifting of scrips from trading to investment or vice versa, assessee’s claim of capital gain on sale of shares held as investment was to be allowed – [2015] 64 137 (Bombay)

SECTION 68

CASH CREDIT

Gift : Where assessee did not have any close relation with alleged donors and no cogent material had been brought on record to prove their financial capacity, gifts received by assessee in his capital account could not be treated as genuine and would be added to his income under section 68 – [2015] 64  180 (Gujarat)

SECTION 80HHC

DEDUCTION – EXPORTERS

Reassessment : Where assessee claimed deduction under section 80HHC on ‘service income’ on which Assessing Officer had applied his mind at time of assessment, subsequent judgment of Apex Court would not give Assessing Officer jurisdiction to reopen assessment – [2015] 64  181 (Punjab & Haryana)

SECTION 92C

TRANSFER PRICING – COMPUTATION OF ARM’S LENGTH PRICE

Comparables and adjustments/Comparables – Illustrations : Where assessee, engaged in manufacturing cassia gum powder, rendered marketing support services to its AE, company involved in high end niche market segment of financial contents and company which outsourced its ITES to third party vendors, could not be accepted as valid comparables while determining ALP – [2015] 64  135 (Ahmedabad – Trib.)

SECTION 147

INCOME ESCAPING ASSESSMENT – NON-DISCLOSURE OF PRIMARY FACTS

Information from external source : In absence of any details available on record, Assessing Officer could not initiate assessment proceedings merely on basis of information supplied by DGIT (Inv.) that assessee had made certain bogus purchases and, to said extent, income had escaped assessment – [2015] 64  179 (Gujarat.)

SECTION 153A

SEARCH AND SEIZURE – ASSESSMENT IN CASE OF

Scope of : In case of assessment made on assessee consequent to search in another case, Assessing Officer is bound to issue notice under section 153C and thereafter proceed to assess income under section 153A and if Assessing Officer had proceeded with reassessment under section 147/148 and passed assessment order under section 143(3), same would be illegal, arbitrary and without any jurisdiction – [2015] 64  159 (Visakhapatnam – Trib.)

SECTION 199

DEDUCTION OF TAX AT SOURCE – CREDIT FOR TAX DEDUCTED

Mobilisation advance : Where TDS was deducted from mobilisation advance paid to assessee-erection contractor, credit of same was to be allowed, even if no income was assessable to tax as contract was not fully executed in relevant year – [2015] 63  334 (Hyderabad – Trib.)

SECTION 222

COLLECTION OF TAX AT SOURCE – CERTIFICATE PROCEEDINGS

Auction : There is no requirement of giving opportunity of hearing to Judgment Debtor before valuation of property to be auctioned is made and its reserve price is fixed – [2015] 64  133 (Madhya Pradesh)

SECTION 234E

FEE – FOR DEFAULT IN FURNISHING STATEMENT

Intimation under section 200A : Fees under section 234E in respect of defaults in furnishing TDS statements could not be levied in course of intimation under section 200A – [2015] 63  333 (Amritsar – Trib.)

COMPETITION ACT

SECTION 4

PROHIBITION OF ABUSE OF DOMINANT POSITION

Where disputes between complainant-distributor and respondent -supplier were purely contractual in nature, allegations made by complainant in context of discontinuance of distributorship could not be treated as unfair trade practice as defined under section 36A of MRTP Act – [2015] 64  154 (CAT – New Delhi)

CONSTITUTION OF INDIA

ARTICLE 226

WRIT PETITION – SCOPE OF

Right to fair hearing and right to defence is a guaranteed right; hence, for said purpose, department must supply documents demanded by assessee, even if said documents are not relied upon in show-cause notice – [2015] 64 97 (Madras)

CENTRAL EXCISE ACT

SECTION 4

VALUATION UNDER CENTRAL EXCISE – TRANSACTION VALUE – RELATED PERSON

In case of related parties, value is determined based on sale price of buyers for same period during which goods were sold by assessee to related buyers; hence, in valuing sales for 2004-05, sale price of buyers during 2001-02 cannot be taken – [2015] 64  163 (SC)

SECTION 5A

EXEMPTIONS – CENTRAL EXCISE – DRUG FORMULATIONS

Exemption to ‘formulations’ manufactured out of ‘streptomycin’ does not mean that ‘formulations’ cannot contain any other ‘drug’; therefore, Strepto Penicillin Injection containing ‘streptomycin’ as well as ‘penicillin’ is exempt –[2015] 64  170 (SC)

SECTION 21

ARRESTS – PROCEDURE, DISPOSAL AND INQUIRY

If major shareholder of company is found actively involved in evasion of duty by company by unaccounted sales and purchases, his arrest and proceedings for confiscation and penalty against him, are valid – [2015] 64 103 (Bombay)

CST & VAT

SECTION 4 OF RAJASTHAN SALES TAX ACT, 1994

CLASSIFICATION OF GOODS – ASAFOETIDA (HING)

Where on packet of asafoetida (hing) being sold by assessee, it was printed ‘Ram Deo Super Compounded Asafoetida Ingredients: Edible Gum, Wheat Flour 30 per cent aprox’, said item would fall under Entry No. 82 of Act and was liable to tax at 4 per cent – [2015] 64  173 (Rajasthan)

CENVAT CREDIT RULES

RULE 3

CENVAT CREDIT – GENERAL

Central Excise duty equivalent to Cenvat Credit availed by original manufacturer on capital goods could not be demanded from purchaser on its sale when purchaser did not take benefit of Cenvat credit on it – [2015] 64 129 (Mumbai – CESTAT)

STATUTES

CORPORATE LAWS

Consultation paper on additional disclosure norms for retail/public issuance of Additional Tier 1 (AT1) instruments issued by banks – PRESS RELEASE, DATED 18-12-2015

Consultation paper on guidelines for public issue of units of Infrastructure Investment Trusts – PRESS RELEASE, DATED 18-12-2015

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Compensation, Rehabilitation and Resettlement and Development Plan) Rules, 2015 – NOTIFICATION NO. GSR 985(E) [F.NO.13011/01/2015-LRD], DATED 18-12-2015

Debts Recovery Appellate Tribunal, Delhi (Court Master) Recruitment Rules, 2015 – NOTIFICATION NO. GSR 957(E) [F.NO.5/3/2015-DRT], DATED 11-12-2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: singh@carajput.com or call at 9555555480