Wednesday, September 30, 2015

[aaykarbhavan] Judgmnets and Information [4 Attachments]






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RBI allows Indian cos. to raise funds via INR-bonds, prescribes detailed framework

RBI lays down framework for issuance of Rupee denominated bonds overseas within the External Commercial Borrowings (ECB) Policy; 'Eligible borrowers' include any corporate / body corporate, Real Estate Investment Trusts (REITs), Infrastructure Investment Trusts (InvITs), and 'recognised investors' include any investor from Financial Action Task Force compliant jurisdiction; States that ECB proceeds can be used for all purposes except for: (i) Real estate activities (other than for development of integrated township / affordable housing projects); (ii) Investing in capital market and using the proceeds for equity investment domestically, (iii) Activities prohibited as per FDI guidelines, (iv) On-lending to other entities for any of the above objectives, (v) Purchase of land; States that under automatic route, the amount will be equivalent of USD 750 million p.a. can be raised, beyond which RBI approval will be required; States that overseas investors will be eligible to hedge their exposure in Rupee through permitted derivative products with Authorised Dealer Category - I Banks in India: RBI

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MCA mandates company's PAN in its Annual Return form

MCA amends Form No. MGT – 7 (Form relates to filing annual return by a company), prescribed under Cos. (Management and Administration) Rules, 2014; Vide the change, cos. are required to provide their Income Tax PAN in the Form No. MGT – 7: MCA

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Post FMC merger, SEBI issues guidelines for registration of commodity derivatives brokers

SEBI states that all existing members of commodity derivatives exchanges who satisfy the eligibility requirements for membership (as prescribed in Rules / Regulations and Bye-laws of the exchange of which it holds membership), are eligible to apply for registration to SEBI, within 3 months; States that such existing members of commodity derivatives exchanges shall be required to meet the prescribed eligibility criteria within 1 year; Clarifies that any person desirous of becoming member of any commodity derivatives exchange(s), on or after September 28, 2015, shall have to meet the eligibility criteria to become a member of an exchange and conditions of registration; Clarifies that "business in goods related to the underlying" and/ or "business in connection with or incidental to or consequential to trades in commodity derivatives", by a member of a commodity derivatives exchange, would not be disqualified for registration under Securities Contract (Regulation) Rules, 1957: SEBI

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CBDT addresses individual stakeholder queries on Black Money Law

CBDT issues further clarifications on Black Money Law, upon issues/questions raised by various stakeholders; Upon Chamber of Tax Consultant's ('CTC') query on immunity in a situation where a regulator receives any information independently about foreign assets abroad, IT Dept. clarifies that no penalty/prosecution proceedings under specified 5 enactments shall be applicable once the asset is a subject matter of declaration u/s 59 of the Income Tax Act; Denies accepting recommendation of giving lenient treatment to PIO/foreigners living and working in India by restricting maximum slab rate to 30%, clarifies that it is contrary to the purpose of Black Money Law; With respect to requirement of disclosing underlying foreign equity shares received as gift by a 'resident' while disclosing foreign dividend, CBDT clarifies that where a satisfactory explanation for the assets exists, the same shall not constitute 'undisclosed foreign asset' under the Act; With respect to declarations made by persons resident in India under Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, RBI clarifies that no proceedings shall lie under FEMA against declarant w.r.t an asset held abroad for which taxes and penalties under Black Money Act have been paid; States that no permission under FEMA is required for disposing asset so declared and bring back the proceeds to India through banking channels within 180 days: CBDT Clarification 

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India tops in FDI for new projects; PMO to take stock of Make in India action points

India tops in FDI for new projects; PMO to take stock of Make in India action points

 



Case Law Citation
Bhavya Anant Udeshi Vs The Income Tax Officer (International Taxation)- ITAT Hyderabad, ITA.No.565/Hyd/2015, Date of decision: 04-09-2015
Brief about the case
In the case of Bhavya Anant Udeshi Vs ITO (International Taxation) it was held by ITAT Hyderabad that provision of section 50C being a deeming provision, it cannot be used for the purpose of imposition of penalty under section 271(1)(c) unless it is proved that Assessee has received any amount over and above the sale consideration mentioned in the sale deed or it can be imposed if there is a failure on the part of the assessee to disclose all the detail correctly.
Facts of the case:
  • The assessee is a non-resident Indian and had filed her return of income on 31.07.2008 declaring income of Rs.3,18,567 which included short term capital gain of Rs.3,06,625 from sale of shares as well as sale of immovable property at Hyderabad.
  • During the course of assessment proceedings the AO observed that the value of the immovable property for the purpose of stamp duty was Rs.2,55,50,000 and therefore AO invoked section 50C of the IT Act computing capital gain at Rs.2,54,58,000.
  • On moving further the CIT(A) and ITAT too confirmed the AO's demand.
  • In the meanwhile, A.O. issued a notice to the assessee requiring him to show cause as to why penalty under section 271(1)(c) of the Act shall not be imposed for furnishing inaccurate particulars of income for the reason that the assessee has intentionally disclosed the sale consideration of property at a lesser rate than what was determined by the registering authority.
  • The assessee in reply submitted that he had furnished all material particulars relating to sale transaction of property by furnishing sale deeds and all other documents for the consideration of the A.O. and the determination of the capital gain is only by applying the provisions of section 50C by adopting the value determined by the SRO for stamp duty purpose as deemed sale consideration, it cannot be said that assessee has furnished inaccurate particulars of income.
  • The ITAT Hyderabad Benches "A" observed that since the assessee has not suppressed any material fact from the notice of the A.O. In these circumstances, the imposition of penalty under section 271(1)(c) of the Act alleging furnishing of inaccurate particulars of income or concealment of income is not appropriate.
Contention of the Revenue
The revenue asserted that the assessee having furnished inaccurate particulars with regard to the value of the property being aware of the fact that the stamp valuation authority has valued the property at Rs.2,55,00,000 for stamp duty purpose has shown the value at lesser amount for the purpose of computing capital gain; therefore, to that extent, there is furnishing of inaccurate particulars of income and hence imposition of penalty under section 271(1)(c) is justified.
Contention of the Assessee
  • The Assessee submitted that there being no conclusive evidence before the A.O. to prove the fact that assessee has received any amount over and above the sale consideration mentioned in the sale deed, imposition of penalty under section 271(1)(c) is not imposable.
  • The A.R. further submitted that the provision of section 50C being a deeming provision, it cannot be used for the purpose of imposition of penalty under section 271(1)(c).
  • The A.R. relied upon a handful of cases such as Renu Hingorani, Mumbai vs. ACIT ITA.No.2210/Mum/2010; Shri Chimanlal Manilal Patel, Surat vs. ACIT ITA.No.508/Ahd/2010; Judgment of Hon'ble Karnataka High Court in the case of CIT vs. Madan Theatres Ltd. In asserting that the assessee had furnished all material facts in the course of assessment proceeding like copy of sale deed, other connected documents, there is no material on record to show that assessee has furnished inaccurate particulars of income.
Held by ITAT
Relying upon the decisions in cases of identical nature, whereby penalty u/s 271(1)(c) was deleted, the Bench pronounced that since the assessee had not suppressed any material fact from the notice of the A.O. in these circumstances, the imposition of penalty under section 271(1)(c) of the Act alleging furnishing of inaccurate particulars of income or concealment of income is not appropriate.

CBDT Extends Due Date For Filing ROI ONLY For Assessess In P&H And Gujarat Subject To Outcome Of Appeal In Supreme Court

F.No.225/207/2015/ITA.II
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
North-Block, ITA.II Division
New Delhi dated the 30th day of September, 2015
Order under Section 119 of the Income-tax Act 1961
The Central Board of Direct Taxes, in compliance to the order of Hon'ble Punjab and Haryana High Court dated 28.09.2015 in case of Vishal Garg & Ors. vs. Union of India & Anr.; CWP 19770-2015 and in exercise of powers conferred under section 119 of the Income-tax Act , 1961 ('Act'), hereby orders that the returns of income due to be E-filed by 30th September, 2015 may be filed by 31st October, 2015 in cases of Income-tax assessees of the State(s) of Punjab and Haryana and Union Territory of Chandigarh.
2. This order shall be subject to the outcome of any further appeal/SlP which the CBDT may file against the said judgment.
(Rohit Garg)
Deputy-Secretary to the Government of India
F.No.22S/207/201S/ITA.II
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
North-Block, ITA.II Division
New Delhi dated the 30th of September, 2015
Order under Section 119 of the Income tax Act. 1961
The Central Board of Direct Taxes, in compliance to the order of Hon'ble Gujarat High Court dated 29.09 .2015 in case of All Gujarat Federation of Tax Consultants vs. CBDT; Special Civil Application No. 15075 of 2015 and in exercise of powers conferred under section 119 of the Income-tax Act, 1961 ('Act'), hereby orders that the returns of income due to be E-fiJed by 30th September,2015 may be filed by 31st October, 2015 in cases of Income-tax assessees of the State of Gujarat.
2. This order shall be subject to the outcome of any further appeal/SLP which the CBDT may file against the said judgment.
(Rohit Garg)
Deputy-Secretary to the Government of India


The Central Board of Direct Taxes, in compliance to the orders of Hon'ble Punjab and Haryana High Court dated 28.09.2015 in case of Vishal Garg & Ors. vs. Union of India & Anr.; CWP 19770-205 and order of Hon'ble Gujarat High Court dated 29.09 .2015 in case of All Gujarat Federation of Tax Consultants vs. CBDT; Special Civil Application No. 15075 of 2015 and in exercise of powers conferred under section 119 of the Income-tax Act , 1961 ('Act'), hereby orders that the returns of income due to be E-filed by 30th September, 2015 may be filed by 31st October, 2015 in cases of Income-tax assessees of the State(s) of Punjab and Haryana and Union Territory of Chandigarh and the State of Gujarat. This order shall be subject to the outcome of any further appeal/SLP which the CBDT may file against the said judgment


Dear Patrons,
Recently, the US Court of Appeals in Lenz v. Universal, ruled on 'fair use' doctrine under copyright law. The case involved use of Universal Music's song in appellant's video uploaded on YouTube. Universal contended copyright infringement while appellant took support of 'fair use' doctrine. Ruling in favour of appellant, the US Court ruled, "Fair use is not just excused by the law, it is wholly authorized by the law."
Kartik Chawla of SpicyIP analyses the 'fairuse' doctrine in light of the above American ruling and compares it with Indian copyright law. The author states that copyright law promotes use of creator's work for creation of more public good, without actually affecting creator's monopoly, business or profit. He, thus, points out that, "The difference, therefore, is between seeing 'fair use' as a right versus seeing it as a defence."
The author specifies that under Indian jurisprudence concept of 'fair dealing' (similar to 'fair use' doctrine) is used as a defence and not as right, and expresses disappointment that such use of 'fair dealing' concept does not serve the aim of copyright law. He mentions that, "An incorporation of Lenz's basic legal position into our law would go a long, long way towards fixing the same."
Click here to read this IP Corner Story – "Through the Looking Lenz – A discourse on Fair Use"
Best Regards
LSI Team


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Posted by: Dipak Shah <djshah1944@yahoo.com>


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