Administrator vs. Swarn Theater (Supreme Court)

Condonation of delay: There are large gaps which are unexplained. It is not known whether any action was taken against the officers who are responsible for the inordinate delay. The highest Court cannot be a walk in place to file any time irrespective of period of limitation prescribed. To blame it on the inefficiency of the administration is no more good excuse. Administration directed to hold an inquiry into the aspect as to who is responsible for such inordinate delay and take suitable action against the officers concerned (Post Master General vs. Living Media (2012) 3 SCC 563 referred)

This is one more case which we have defined as “Certificate Cases” – the object being only to obtain dismissal from the Supreme Court. We have perused the application for condonation of delay also. There are large gaps which are unexplained and there are no instructions with the counsel whether any action was taken against the officers who are responsible for the inordinate delay

Col. Retd. Madan Gopal Singh Nagi vs. CIT (Madhya Pradesh High Court)

Refund of excess taxes: The dept has as usual raised all kind of technicalities in respect of an Army Officer who has dedicated his entire life towards the service of the Nation. The same Army Officer who defended our motherland including the ‘Babus’ sitting in the Income Tax Department is being subjected to harassment. The Colonel, who has made the life of Income Tax Officials and all of us smooth and comfortable and all those Income Tax Officers, who were able to sleep peacefully in their home because the borders were being guarded by the Army Officer. The Dept is trying to put all kind of spokes in the matter of refund for which he is genuinely entitled by virtue of CBDT notification. Suo motu contempt proceedings threatened against CIT & PCIT if refund not granted within 30 days

Our Army Soldiers, Naval Officials and Fighter Pilots are Day and Nights protecting Our Territorial Borders from Enemy Infiltration and Attacks and even while putting their life to the greatest risk, are keeping all Citizens safe and Secure and making Our life free from all such Dangers, where they don’t think of “Technicalities” while Fighting with Enemies at the Front, as to whether pulling the Trigger of their Gun would invite a “Court of inquiry” and from this practical perspective this Court wants to express its concern for not putting too much of technicalities in such matters by those who are invested with Administrative Powers to deal and decide the affairs of the Personnel of Indian Armed Forces

NRA Iron & Steel Pvt. Ltd vs. PCIT (Supreme Court) (Review Petition)

S. 68 Bogus share capital/ premium: Application seeking open court oral hearing is rejected. There is no substance in the Review Petition seeking review of PCIT vs. NRA Iron & Steel Pvt. Ltd (2019) 412 ITR 161 (SC) and the same is dismissed

We have gone through the contents in the Review Petition and do not find any substance in the submissions raised therein. Consequently, this Review Petition is dismissed

Celltick Technologies Ltd vs. DCIT (ITAT Mumbai)

Transfer Pricing: (i) If the “arms length‟ principle is satisfied qua the relevant transaction between the assessee and its Indian subsidiary, no further profits can be attributed to the assessee in India even if it was to be held that the latter had a PE in India (ii) If the subsidiary has subsequently entered into an “APA‟ with the CBDT & the FAR analysis and overall functions remain unchanged, the “APA‟ would have a bearing on the ALP of the earlier years

The Indian subsidiary of the assessee had for A.Y. 2015-16 to A.Y 2019-20 entered into an “APA‟ with the CBDT. As is discernible from the “APA‟, the functions of the subsidiary company inter alia included “marketing and sale of various software solutions” of the assessee company. As per the “APA‟ the operating profit margin up to its revenue of Rs. 50 crore was to be taken at 7% of its “Operating revenue‟. Admittedly, the FAR analysis and overall functions of the subsidiary company had remained the same during the period covered by the “APA‟ and that for the year under consideration i.e A.Y 2014-15. Though, the APA in the case of the assessee had been entered into for the period spread over A.Y. 2015- 16 to A.Y 2019-20, however, as held by the ITAT, Mumbai in the case of 3i India Pvt. Ltd. Vs. DCIT (ITA No. 581/Mum/2015, dated 16.09.2016), a subsequent “APA‟ would also have a bearing on the earlier years

PCIT vs. Rishabhdev Tachnocable Ltd (Bombay High Court)

S. 68 Bogus Purchases: Though the assessee has not proved the genuineness of the purchases and sales, yet if the AO has accepted the sales, the entire purchases cannot be disallowed. Only the profit element embedded in purchases would be subjected to tax and not the entire amount (Bholanath Polyfab 355 ITR 290 (Guj) followed, Kaveri Rice Mills 157 Taxman 376 (All) & La Medica 250 ITR 575 (Del) referred)

Having found that the purchases corresponded to sales which were reflected in the returns of the assessee in sales tax proceedings and in addition, were also recorded in the books of accounts with payments made through account payee cheques, the purchases were accepted by the two appellate authorities and following judicial dictum decided to add the profit percentage on such purchases to the income of the assessee. While the CIT (A) had assessed profit at 2% which was added to the income of the assessee, Tribunal made further addition of 3% profit, thereby protecting the interest of the Revenue

Maruti Suzuki India Ltd vs. CIT (Supreme Court)

U/s 43B(a), deduction is allowed on “any sum payable by the assessee by way of tax, duty, cess or fee.” The scheme of s. 43B is to allow deduction when the sum is actually paid. (i) The credit of Excise Duty earned under MODVAT scheme is not sum payable by the assessee by way of tax, duty, cess. It is merely the incident of Excise Duty that has shifted from the manufacturer to the purchaser and not the liability to the same. Consequently, the unutilised credit under MODVAT scheme does not qualify for deduction u/s 43B. (ii) The sales tax paid by the appellant was debited to a separate account titled ‘Sales Tax recoverable account’ and is liable for disallowance u/s 43B.

Deductions under Section 43B is allowable only when sum is actually paid by the assessee. In the present case, the Excise Duty leviable on appellant on manufacture of vehicles was already adjusted in the concerned assessment year from the credit of Excise Duty under the MODVAT scheme. The unutilised credit in the MODVAT scheme cannot be treated as sum actually paid by the appellant. The assessee when pays the cost of raw materials where the duty is embedded, it does not ipso facto mean that assessee is the one who is liable to pay Excise Duty on such raw material/inputs. It is merely the incident of Excise Duty that has shifted from the manufacturer to the purchaser and not the liability to the same

CTO vs. Bombay Machinery Store (Supreme Court)

The concept of “constructive delivery” of goods as expounded in Arjan Dass Gupta 45 STC 52 (Del) is not proper to interpret the provisions of s. 3 of the CST Act. A legal fiction is created s. 3 that the movement of goods, from one State to another shall terminate, where the good have been delivered to a carrier for transmission, at the time of when delivery is taken from such carrier. There is no concept of constructive delivery either express or implied in the said provision. On a plain reading of the statute, the movement of the goods would terminate only when delivery is taken. There is no scope of incorporating any further word to qualify the nature and scope of the expression “delivery” within the said section. If the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provisions of the 1956 Act, then the proper course would be legislative amendment. The Tax Administration Authorities cannot give their own interpretation to legislative provisions on the basis of their own perception of trade practice. This administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature

In the case of Arjan Dass Gupta (supra) principle akin to constructive delivery was expounded and we have quoted the relevant passage from that decision earlier in this judgment. In our opinion, however, such construction would not be proper to interpret the provisions of Section 3 of the 1956 Act. A legal fiction is created in first explanation to that Section. That fiction is that
the movement of goods, from one State to another shall terminate, where the good have been delivered to a carrier for transmission, at the time of when delivery is taken from such carrier. There is no concept of constructive delivery either express or implied in the said provision. On a plain reading of the statute, the movement of the goods, for the purposes of clause (b) of Section 3 of the 1956 Act would terminate only when delivery is taken, having regard to first explanation to that Section. There is no scope of incorporating any further word to qualify the nature and scope of the expression “delivery” within the said section. The legislature has eschewed from giving the said word an expansive meaning. The High Court under the judgment which is assailed in Civil Appeal No.2217 of 2011 rightly held that there is no place for any intendment in taxing statutes. We are of the view that the interpretation of the Division Bench of the Delhi High Court given in the case of Arjan Dass Gupta does not lays down correct position of law. In the event, the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provisions of the 1956 Act, then the proper
course would be legislative amendment. The Tax Administration Authorities cannot give their own interpretation to legislative provisions on the basis of their own perception of trade practise. This administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature