[aaykarbhavan] Fw: [Gzb_CA Group -CA. VINAY MITTAL] Fwd: Mumbai bench on section 292C rebuttable presumption scope (search and survey cases) Adverse statement of assessee No binding; Busy Doctor Share Transactions Capital Gains Head; Charitable trust taxation (Hindu Dharma vs Particular community); Section 10(37) exemption Urgency Cash Loans 269SS penalty

----- Forwarded Message -----
From: Kapil Goel <advocatekapilgoel@gmail.com>
To: CA.KAPIL GOEL <kapilnkgoelandco@gmail.com>
Sent: Friday, 14 June 2013 12:12 PM
Subject: [Gzb_CA Group -CA. VINAY MITTAL] Fwd: Mumbai bench on section 292C rebuttable presumption scope (search and survey cases) Adverse statement of assessee No binding; Busy Doctor Share Transactions Capital Gains Head; Charitable trust taxation (Hindu Dharma vs Particular community); Section 10(37) exemption Urgency Cash Loans 269SS penalty

 

Gist of ITAT orders

 

1. Mumbai bench on presumption of documents u/s 292C which are not found from assessee under income tax i) search ii) survey iii) requisition Vs. documents from sale tax survey (copies) sent to income tax officer in routine course
2. Mumbai Bench on evidentiary value of adversarial statement post survey and not recorded u/s 132(4) or under assessment proceedings : only supportive nature not conclusive nature
3. Mumbai bench Profession Doctor share sale transaction income : Held capital gains (repetitive no ground for business income)
4. Hyd bench on Hindu members in society versus beneficiary of society (charity section 12AA)
5. Hyd bench on exemption u/s 10(37) capital gains
6. Mumbai bench Urgency Transaction cash loan penalty u/s 269SS
   

 

 

 

IN THE INCOME TAX APPELLATE TRIBUNAL

HYDERABAD BENCH 'A', HYDERABAD Sri Gowri Sankara Sathra

(Uppara) Anna Sathra Sangam,

Srisaliam. 07.06.2013 This appeal by the assessees is directed against the order of the

Director of Income-tax(Exemption) Hyderabad dated 29.6.2012, declining to

grant registration under S.12A of the Act to the assessee society We heard both sides. In our considered view, the rejection of

assessee's application for registration under S.12AA is misconceived. It is an

undisputed fact that the objects of the assessee society are to run an Annadana

Satram, including poor feeding, to run a library, to work for charities for the

benefit and upliftment of economically backward and down trodden people and

to do social service for improving the living conditions and work for general  welfare of the poor irrespective of caste, creed and colour. For carrying on its

activities in pursuance of these objects, it is not necessary or imperative for the

applicant society to be owner of the land or the building which is constructed on

it. Therefore, the first objection of the Director of Income-tax(Exemption) that

the assessee society has merely been permitted to make construction on the

land allotted and had no property of its own, is not valid, since ownership over

the property does not in any way disturb the otherwise charitable nature of the

assessee society Even with regard to the last objection of the Director of Income-

tax(Exemption) for rejection of assessee's application for registration that the

membership of the assessee-society is limited to Hindus, we do not find any

merit in the same. A reading of the relevant clause from the Rules and

Regulations of the assessee society, prescribing the qualification to be a

member, as extracted by the Director of Income-tax(Exemption) in para 3 of his

impugned order, indicates that membership is open to ' a Hindu having full faith

in Hindu Dharma, Samskruti and way of life'. We do not find anything wrong in

the said clause, which disqualifies the assessee from being eligible to registration

under S.12AA. Considering the nature of activities of the assessee society, and

its area of operation, belief in Hindu Dharma, Samskruti and way of life are

important pre-requisites to be a member because, unless the members have

belief in the philosophy of the society, the objects of the society cannot be

effectively persued. The rules and regulations or the society states that the

'Member' has to have faith in Hindu Dharma. Nowhere is the charity extended

to a particular religious community say that the benefit of the charity done by

the society shall accrue only to Hindus. The beneficiaries are not restricted to

Hindus alone. It is only the member of the Society who has to have faith in

Hindu Dharma. Hence, the society will not lose exemption under S.12AA on the ground that it has utilised the funds for the welfare of particular religious

community.

 

 

 

 

IN THE INCOME TAX APPELLATE TRIBUNAL

HYDERABAD BENCH 'A', HYDERABAD

 

 Smt. Vinumoorthy Varalaxmi 03.06.2013 The sub-section mentions that if an individual derives any

capital gains on transfer of agricultural land, it is exempt from tax, if the

land was acquired by Central Government. The condition mentioned was

that such land during the period of two years immediately preceding the

date of transfer, should have been used for agricultural purposes. In the

present case, before us, a copy of the pattadar pass-book has been

submitted for perusal. It shows that the assessee is an agriculturist and

the returns of income for the assessment years 1998-99, 1999-2000 and

2000-01 have also been furnished, to submit that agricultural income has

been offered for two years immediately preceding the date of transfer. We also observe that by virtue of the deemed provisions of the Act,

compensation becomes liable for taxation in the year of receipt, though

the transfer took place on the date of notification. Hence, we are of the

opinion that the capital gains if any received by the assessee on the

acquisition of the land in question, which is of agricultural nature, by the

Government is exempt under S.10(37) of the Act. We hold so, and direct

the Assessing Officer not to levy any tax on the capital gains worked out

on the acquisition of the lands in question by the Government. Grounds of

the assessee in this appeal are consequently allowed.

 

 

IN THE INCOME TAX APPELLATE TRIBUNAL " D " BENCH, MUMBAI ./I.T.A. No. 827/Mum/2012 Assessment Year : 2008-09 :12.06.2013 In the present case,

it is not in dispute that the assessee is a Doctor and is whole time engaged

in his profession. Whether a particular holding of shares is by way of

investment or forms part of the stock-in-trade is a matter which is within

the knowledge of the assessee who holds the shares and it should, in

normal circumstances, be in a position to produce evidence from its

records as to whether it has maintained any distinction between those

shares which are its stock-in-trade and those which are held by way of

investment. The allegation that the assessee has done repetitive

transactions cannot ipso-facto make the assessee a trader. It is an

accepted fact and practice that in order to reduce the risk of loss of capital

or income, the investor may try diversify the investment. Therefore, there

may be a case of reshuffling portfolio by selling of some scrips and

buying of some scrips to mitigate the scope of law of capital or income.

Therefore, the reshuffling in a short period is not necessarily to be taken

as an activity of trading when the intention was to reduce the risk of loss

of capital. A perusal of the statement of accounts show that the assessee

has no bank borrowings, the only borrowings are from family members

and the income and expenditure account of the assessee does not reflect

any claim of interest payment which means that the assessee has made

investments not out of borrowed capital. 8.2. Considering the profession of the assessee, it cannot be said that

the assessee was fully devoted to the stock market transaction.

Considering the nature of profession and the facts in totality, in our

considered view, the lower authorities have erred in treating the Short

Term Capital gains as business income. We accordingly direct the AO to

treat the STCG as declared by the assessee. On that note, we reverse the

findings of the Ld. CIT(A). Ground No. 1 & 2 are accordingly allowed.

 

 

THE INCOME TAX APPELLATE TRIBUNAL " D " BENCH, MUMBAI M/s. Raj Special ity Additives

Pvt . Ltd Date of Pronouncement :12.06.2013 The short grievance of the Revenue is that the Ld. CIT(A) erred in

deleting the penalty of Rs. 3 lakhs levied u/s. 271D of the Act. In the instant case, we find that since the assessee was in want of

funds to make payments to the contractors, it asked its director to make

the payment directly to the contractor and accordingly, the director has

made payment to the contractor, though in cash. Therefore, in our

considerate opinion, there was no violation of the legislative intent behind

the introduction of Section 269SS, inasmuch as the transaction has duly

been recorded in the accounts with proper narration. Since the assessee

was in urgent need of money, considering the urgency, one of the

Directors has made the payment directly. Therefore, in our humble

opinion, the assessee had reasonable and sufficient cause for making payment in cash through its director, though technically the assessee itself

has not made the payment in cash, as one of the Directors has made the

payment. Considering the facts of the case, in the light of the legislative

intent as discussed hereinabove, we confirm the findings of the Ld.

CIT(A). The penalty so levied is accordingly cancelled.

 

 

IN THE INCOME TAX APPELLATE TRIBUNAL

"D" BENCH, MUMBAI I.T.A. No. 4522/Mum/2012 Assessment Year :2008-09 Dharmesh Manibhai Patel Assessing Officer has also took shelter to the

provisions of section 292C . As per section 292C a presumption can be

raised in respect of books of accounts, other documents, money, bullion,

jewellery or other valulable articles found in the possession or control of

any person in the course of search under section 132 or Survey under

section 133A that the same belongs to such person. In case books of

accounts, other documents or assets have been delivered to the

requisitioning Officer under section 132A, it is deemed that the same have been taken into custody from such person It is prerequisite condition for invoking the presumption under section

292 C that the Books of Accounts, other document or assets are either

found in the possession or control of any person in the course of search

under section 132 or survey under section 133A or requisitioned in the

course of search under section 132. In the case of the Assessee before us

there is no search under section 132 and there was only survey under

section 133A. The documents in question were not found in possession or

control of the assessee during the said survey. The case of the department

is that these documents are requisitioned from the Sales Tax Department, but when there is no search under section 132 of the Income Tax

Department, then the documents so requisitioned does not fall under

subsection 2 of section 292C. Hence no presumption can be raised in

respect of the documents which are neither found in the possession or

control the assessee nor requisitioned under section 132A. The another question arises regarding the admission by the Assessee in

the statement recorded on 02.04.2009. The statement was not recorded

under section 132(4) or during the assessment proceedings. It was

recorded post survey action therefore though it can be good evidence

against the assessee, but no addition can be made solely on the basis of

the statement without corroborating evidence

 

IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH, MUMBAI Procter & Gamble Home

Products Ltd. ./I.T.A. No.3493/M/2009 5.6.2013 Regarding the issue relating to the 'modification of the direction of the CIT to

the AO' for treating the said receipts under the head 'income from house property',

in our opinion, Ld Counsel's prayer for reexamining the direction deserves merits.

Considering the absence of relevant discussion in the impugned on the business

nature or otherwise of the said receipts, we find that the said direction in the

present form of the CIT-8, Mumbai is premature. Therefore, we keep this issue

open for examination by the AO during the fresh assessment proceedings giving

effect to the review order u/s 263 of the Act. In case, the AO is of the opinion that

these receipts have to be brought to the tax under the head 'profits and gains from

business or profession', the allowable expenses of business nature are required to be

allowed as claimed by the assessee vide ground no.4 of the appeal after due

examination of the relevant facts. AO shall thoroughly examine the claims of the

assessee in this regard before taking any decision in accordance with law.

Accordingly, ground no.2 and 4 raised by the assessee are partly allowed.

__._,_.___

receive alert on mobile, subscribe to SMS Channel named "aaykarbhavan"
[COST FREE]
SEND "on aaykarbhavan" TO 9870807070 FROM YOUR MOBILE.

To receive the mails from this group send message to aaykarbhavan-subscribe@yahoogroups.com

Your email settings: Individual Email|Traditional
Change settings via the Web (Yahoo! ID required)
Change settings via email: Switch delivery to Daily Digest | Switch to Fully Featured
Visit Your Group | Yahoo! Groups Terms of Use | Unsubscribe

__,_._,___