Daily Tax | Corporate Laws | Accounting Digest
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Welcome to Taxmann.com | Newsletter – Reporting the Facts with Taxmann’s Analysis. Today’s Edition Brings to You with a Section-wise Digest of Statutes | Judgments?| Opinions.
INCOME TAX
SECTION 9 OF THE INCOME-TAX ACT, 1961 - INCOME - DEEMED TO ACCRUE OR ARISE IN INDIA
Dividend - General: Where contracting states to a tax treaty intend to extend treaty protection to domestic company paying dividend distribution tax, only then, domestic company can claim benefit of DTAA, if any; DTAA does not get triggered at all when a domestic company pays DDT under section 115-O - Piaggio Vehicles (P.) Ltd. v. Assistant Commissioner of Income-tax - [2024] 165 taxmann.com 257 (Pune - Trib.)
SECTION 45 OF THE INCOME-TAX ACT, 1961 - CAPITAL GAINS - CHARGEABLE AS
Revaluation of asset held by partnership firm and crediting amount of said revaluation to partners’ capital account is a transfer which falls under section 45(4) and any profit or gain arising from transfer needs to be taxed in hands of firm - Shree Estates v. Income-tax Officer - [2024] 165 taxmann.com 261 (Hyderabad - Trib.)
SECTION 92C OF THE INCOME-TAX ACT, 1961 - TRANSFER PRICING - COMPUTATION OF ARM’S LENGTH PRICE
Comparables, functional similarity - Manufacturer: Where switch mode power supply manufactured by assessee was an electronic, however, for benchmarking, TPO had selected companies dealing in electrical products, matter was to be remanded to TPO with a direction to bring comparables on record which deal in electronic products supported by certificate of some technical experts - Advance Power Display Systems Ltd. v. Deputy Commissioner of Income-tax - [2024] 165 taxmann.com 252 (Mumbai - Trib.)
SECTION 124 OF THE INCOME-TAX ACT, 1961 - ASSESSING OFFICER - JURISDICTION OF
Where an authority or court lacks inherent jurisdiction in passing a decree or order, decree or order passed by such authority or court would be without jurisdiction, non est and void abinitio - Principal Commissioner of Income-tax v. Divine Light Finance Ltd. - [2024] 165 taxmann.com 254 (Calcutta)
SECTION 144 OF THE INCOME-TAX ACT, 1961 - BEST JUDGMENT ASSESSMENT
Opportunity of hearing: Where assessee chose not to appear in terms of notices issued under section 143(2) and section 142(1), Assessing Officer was justified in passing impugned ex parte assessment order without giving reasonable opportunity of hearing to assessee - Sukhvinder Singh v. Commissioner of Income-tax (Appeals) - [2024] 165 taxmann.com 262 (Punjab & Haryana)
Ex parte assessment: Where assessee was represented by a lawyer who appeared in response to notice and filed power of attorney, however, he did not further pursue matter after having appeared through counsel, Assessing Officer had no other option, but to invoke provisions of section 144 and pass ex parte assessment order - Sukhvinder Singh v. Commissioner of Income-tax (Appeals) - [2024] 165 taxmann.com 262 (Punjab & Haryana)
SECTION 148A OF THE INCOME-TAX ACT, 1961 - INCOME ESCAPING ASSESSMENT - CONDUCTING INQUIRY, PROVIDING OPPORTUNITY BEFORE ISSUE OF NOTICE
General: Where Assessing Officer on basis of audit objections issued a notice for reopening assessment in case of assessee, since assessee had specifically asked for documents to be supplied including complete case proceedings and for personal hearing, which was not given and Assessing Officer had acted in undue haste, orders passed under section 148A(d) and under section 148 were to be set aside - Ravish Rastogi v. Union of India - [2024] 165 taxmann.com 258 (Allahabad)
SECTION 201 OF THE INCOME-TAX ACT, 1961 - DEDUCTION OF TAX AT SOURCE - CONSEQUENCE OF FAILURE TO DEDUCT OR PAY
Where Assessing Officer passed an order under section 201(1) for default on part of assessee to deduct tax at source in respect of payment made to BDA for execution of work, since assessee had explained before Assessing Officer that BDA had considered these payment as part of their income and also issued a declaration under section 26A issued by Accountant through tendering process and finally payment made to contractor after deduction of TDS by BDA, all these factual aspects of matter were required to be properly verified while computing quantum of default if any, therefore, impugned order of Assessing Officer was to be set aside and matter was to be remanded to him for fresh adjudication - District Organiser Tribal Welfare Bhopal v. ITO (TDS) - [2024] 165 taxmann.com 253 (Indore - Trib.)
SECTION 253 OF THE INCOME-TAX ACT, 1961 - APPELLATE TRIBUNAL - APPEALS TO
Condonation of delay: Where assessee, a Government department, filed an application for condonation of delay in filing appeal before Tribunal submitting that order was not served to assessee in physical form despite fact that assessee had in Form no. 35 had specifically denied mode of notice through e-mail, and further, assessee was not having knowledge of impugned order till it had received summons issued under section 131 and came to know that impugned order was passed whereby appeals of assessee were dismissed, delay in filing these appeals was to be condoned - District Organiser Tribal Welfare Bhopal v. ITO (TDS) - [2024] 165 taxmann.com 253 (Indore - Trib.)
SECTION 254 OF THE INCOME-TAX ACT, 1961 - APPELLATE TRIBUNAL - POWERS OF
Power to grant stay: Third proviso to section 254(2A) which has been inserted by Finance Act, 2008 with effect from 1-8-2008 and which does not permit extension of stay order beyond 365 days even if delay in disposal of appeal is not attributable to assessee is illegal - Principal Commissioner of Income-tax v. Volkswagen Group Sales India (P.) Ltd. - [2024] 165 taxmann.com 231 (Bombay)
SECTION 292BB OF THE INCOME-TAX ACT, 1961 - NOTICE DEEMED TO BE VALID IN CERTAIN CIRCUMSTANCES
Section 292BB relates to deemed service of notice and not to territorial jurisdiction of an authority under Act - Principal Commissioner of Income-tax v. Divine Light Finance Ltd. - [2024] 165 taxmann.com 254 (Calcutta)
GOODS AND SERVICES TAX LAWS
SECTION 11 OF THE CENTRAL GOODS AND SERVICES TAX ACT, 2017 - LEVY AND COLLECTION OF TAX - EXEMPTION - POWER TO GRANT
Where hostel accommodation with compulsory supply of meals along with hostel amenities is composite supply and renting of residential dwelling for residential purpose, therefore, supply of hostel accommodation services to students with mandatory supply of meals and other necessary amenities, for duration of stay of 10 months is covered by Entry at Sl. No. 12 of Notification 12/2017-Central tax (Rate), dated 28.06.2017 and exempted from tax liability - Maharashtra Jain Education Society, In re - [2024] 165 taxmann.com 270 (AAR - MAHARASHTRA)
Where only period for tenure of 3 months in hostel accommodation and same is to be treated as residential purpose and any period having tenure below 3 months will not be treated as residential purpose, therefore, supply of hostel accommodation services by applicant-assessee to students with mandatory supply of meals and other necessary amenities, for duration of stay of 1 to 2 months during vacation period to new students, is not eligible for benefits of exemption as per Entry at Sl. No. 3 of Notification No-12/2017-Central tax (Rate), dated 28-6-2017 - Maharashtra Jain Education Society, In re - [2024] 165 taxmann.com 270 (AAR - MAHARASHTRA)
Where earlier tenure of residence of 10 months of old students, is extended for further period of one month or 2 months will not change nature of their earlier stay of 10 months (Residence) to temporary accommodation status, therefore, supplies considering earlier tenure 10 months will also be long term tenure and same are considered as residence and eligible for benefits of exemption - Maharashtra Jain Education Society, In re - [2024] 165 taxmann.com 270 (AAR - MAHARASHTRA)
SECTION 16 OF THE CENTRAL GOODS AND SERVICES TAX ACT, 2017 - LEVY AND COLLECTION OF TAX - EXEMPTION - POWER TO GRANT
Show cause notice issued against assessee was to be set aside on following case of On Quest Merchandising India Private Limited v. Government of NCT of Delhi [2017] 87 taxmann.com 179 (Delhi) wherein it was categorically held that a purchasing dealer could not be punished for act of selling dealer in case selling dealer had failed to deposit the tax collected by it - National Plasto Moulding v. State of Assam - [2024] 165 taxmann.com 255 (Gauhati)
Where assessee had wrongly availed benefit of refund under rule 96 seeking to grant refund of input tax credit availed and utilized in discharging IGST on exported goods, procedural irregularity committed by assessee could not come in legitimate way of grant of export incentives, thus case was to be remitted to pass fresh order by examining exports made by assessee for grant of refund under rule 89 of CGST Rules, 2017 - Shobikaa Impex (P.) Ltd. v. Union of India - [2024] 164 taxmann.com 486 (Madras)
Where in impugned order, there was no finding in respect of first issue raised in SCN and with regard to second issue, tax proposal was confirmed on ground that assessee did not establish movement of goods by producing lorry receipts, weighment slips and payments made to supplier and none of such documents were called for in show cause notice which preceded impugned order, impugned order was to be set aside and matter was to be remanded for re-consideration - Tvl. Slitina Metal Sales LLP v. Assistant Commissioner (ST) - [2024] 165 taxmann.com 67 (Madras)
SECTION 17 OF THE CENTRAL GOODS AND SERVICES TAX ACT, 2017 - INPUT TAX CREDIT - CREDIT AND BLOCKED CREDITS, APPORTIONMENT OF
Where dispute in relation to apportionment of tax paid by assessee had not been settled and assessee approached High Court against order levying tax and penalty, it was just and appropriate that Appellate Authority shall consider grievance regarding payment of penalty and interest, thus assessee was to be directed to approach Appellate Authority under section 107 - Primeone Workforce (P.) Ltd. v. State of U.P. - [2024] 165 taxmann.com 98 (Allahabad)
SECTION 73 OF THE CENTRAL GOODS AND SERVICES TAX ACT, 2017 - DEMANDS AND RECOVERY - TAX OR INPUT TAX CREDIT DUE NOT INVOLVING FRAUD MISSTATEMENT OR SUPPRESSION
Show cause notice issued by revenue under section 73 was to be set aside as said notice included directions for filing a reply but did not provide a date for a personal hearing which amounted to violation of principle of natural justice - Alfa Cityinfra (P.) Ltd. v. Chief Commissioner of Central Tax, Goods and Services Tax - [2024] 165 taxmann.com 208 (Orissa)
Where impugned order was passed without considering response filed by assessee and without providing an opportunity of personal hearing, same was to be set aside and matter was to be remanded - Adama India (P.) Ltd. v. Union of India - [2024] 165 taxmann.com 95 (Karnataka)
SECTION 129 OF THE CENTRAL GOODS AND SERVICES TAX ACT, 2017 - DETENTION, SEIZURE AND RELEASE OF GOODS AND CONVEYANCES IN TRANSIT
Where assessee supplied goods to purchaser of Chandpur (UP), consigned to “Udit Engineers, Aligarh”, in e-way bill place of delivery mentioned as "Chandpur (UP)", human error while filling up e-way bill, no finding recorded by any authority below that there was mens rea essential for levying penalty under section 129(3) of CGST Act, impugned orders were to be set aside - Uttam Electric Store v. State of U.P. - [2024] 165 taxmann.com 264 (Allahabad)
SECTION 132 OF THE CENTRAL GOODS AND SERVICES TAX ACT, 2017 - OFFENCES - PUNISHMENTS FOR CERTAIN OFFENCES
Where assessee arrested for GST offences sought regular bail, bail granted considering investigation was completed, chargesheet filed, maximum punishment was 5 years, and further detention was not required - Sanket v. Director General of Goods and Service Tax Intelligence - [2024] 165 taxmann.com 260 (Bombay)
Where application did not disclose criminal history and such a conduct of applicant, seeking regular bail without disclosing material facts, about criminal history and facts about his conviction clearly revealed that he procured bail by way of misrepresentation, thus order passed cancelling bail of application was justified - Mohd. Shahnawaz Hussain v. State of Uttarakhand - [2024] 165 taxmann.com 97 (Uttarakhand)
领英推荐
COMPANY AND SEBI LAWS
SEBI proposes additional disclosures in filing of quarterly compliance reports by Foreign Venture Capital Investors
Editorial Note: Presently, foreign venture capital investors (FVCIs) must provide quarterly reports to SEBI in the specified format regarding their venture capital activities. Now, SEBI feels a need to revise the format for filing compliance reports by FVCIs. Accordingly, SEBI has proposed additional disclosures in the revised format. Public Comments/Suggestions on the same may be submitted latest by August 29, 2024.
FEMA BANKING AND INSURANCE LAWS
Government introduces Banking Laws (Amendment) Bill, 2024 in Lok Sabha
Editorial Note: The Government has introduced the Banking Laws (Amendment) Bill, 2024 in the Lok Sabha. The Bill seeks to amend the RBI Act, 1934, the Banking Regulation Act, 1949, the SBI Act, 1955 etc. In the RBI Act, 1934, the definition of “fortnight” u/s 42 has been proposed to be substituted. As per the proposed norms, the term ‘fortnight’ means the period from the first day to the 15th day of each calendar month or the 16th day to the last day of each calendar month, both days inclusive.
Circular No. RBI/2024-25/60 DOR.FIN.REC.NO.32/20.16.056/2024-25 , Dated 08-08-2024
RBI directs credit information companies/institutions to update credit information fortnightly or at shorter intervals
Editorial Note: The RBI has directed credit information companies (CICs) and credit institutions (CIs) to keep the credit information collected/maintained by them updated regularly on a fortnightly basis (i.e., as on the 15th and last day of the month) or at such shorter intervals as mutually agreed upon between the CI and CIC. Further, the fortnightly submission of credit information by CIs to CICs must be ensured within 7 calendar days of the relevant reporting fortnight.
SECTION 13 OF THE FOREIGN EXCHANGE MANAGEMENT ACT, 1999 - PENALTIES
Where appellant was money changer and during search, ED seized foreign currencies of Rs.11 lakh and Indian currency of Rs.11 lakh from business premises of appellant, i.e. Duggal Forex and though there were evidence on record that seized amount was duly accounted for which reflects that there was no contravention on part of Duggal Forex, but evidence on record clearly reflects that appellant being its director used to sell US $ on premium rate to officials/officers of Nigerian High Commission, thus, appeal against order of Adjudicating Authority imposing penalty upon Duggal Forex was to be allowed but appeal by appellant was to be dismissed - Duggal Forex (P.) Ltd. v. Special Director Directorate of Enforcement, Delhi - [2024] 165 taxmann.com 268 (SAFEMA - New Delhi)
SECTION 145 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 - EVIDENCE ON AFFIDAVIT
Where a complaint was filed under section 138 against petitioner and Trial Court passed an order closing opportunity of cross examination of complainant as no application was filed for cross examination, since petitioner failed to file an application under section 145 and to disclose probable defence for purpose of such recall, no fault could be attributed to such order and writ petition filed by petitioner challenging said order was to be dismissed - Cassius Infracon (P.) Ltd. v. Vidhyadhar Vttam Kerkar - [2024] 165 taxmann.com 267 (Bombay)
OPINIONS
World Tax News: UK publishes policy paper on changes to the taxation of non-UK domiciled individuals and more… - Taxmann, Editorial Team - [2024] 165 taxmann.com 294 (Article)
Rationalisation of Exemptions available to Charitable Entities - CA Akash Agarwal, Partner, Asija & Associates LLP - [2024] 165 taxmann.com 283 (Article)
Bridging the Gap with Certainty: Government’s Safe Harbor Commitment for GCCs - Manisha Gupta, Partner, Deloitte India - [2024] 165 taxmann.com 282 (Article)
Scrapping of 2% Equalization Levy - A welcome move! - Ashesh R. Safi, Partner, Deloitte Haskins & Sells LLP, Kripa Ray, Manager, Deloitte Haskins & Sells LLP, Himani Varia, Manager, Deloitte Haskins & Sells LLP - [2024] 165 taxmann.com 281 (Article)
Finance bill 2024 – Specific thoughts on capital gains and buyback - Vinay Dalvi, CA - [2024] 165 taxmann.com 280 (Article)
ROC imposes fine on Company and its directors for failing to report board meeting details in board's report - Prof R Balakrishnan, FCS – FCMA - [2024] 165 taxmann.com 284 (Article)
That’s it from us for today!
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