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Saturday, February 26, 2011

Fwd: TaxGuru.in : Legal & Tax Updates



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From: LEGAL & FINANCIAL UPDATES FROM TAX GURU <info@taxguru.in>
Date: Sat, Feb 26, 2011 at 9:46 AM
Subject: TaxGuru.in : Legal & Tax Updates
To: palashbiswaskl@gmail.com


TaxGuru.in : Legal & Tax Updates

Link to LEGAL & FINANCIAL  UPDATES FROM TAX GURU

ICAI increase Entrance, Fellow Admission, Membership, COP, Fellow and Associates Fees w.e.f. 01.04.2011

Posted: 25 Feb 2011 07:20 PM PST


Kind attention of Members is invited to the revised schedule of Membership and related fee effective from 01st April, 2011 as given below: -Members who are senior citizens i.e. have attained the age of 65 years as on 1st April of the relevant year...

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Sebi bars 6 entities from market, slaps Rs 36 crore penalty

Posted: 25 Feb 2011 06:59 PM PST


Sectoral regulator Sebi on Friday barred six market intermediaries from trading in securities for allegedly carrying out manipulations in various IPO issues and also slapped a penalty of Rs 36.09 crore. "Roopalben N Panchal, Devangi Panchal, Dipak...

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Axis Bank launches income tax payment facility at ATMs

Posted: 25 Feb 2011 06:49 PM PST


Private sector Axis Bank today announced the launch of the facility to pay income tax at ATMs. This facility, initially, will be available at select ATMs in the major centres and will shortly be made available at all 5,600-plus ATMs across the...

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Indian Accounting Standards Converged with IFRS Notified

Posted: 25 Feb 2011 06:45 PM PST


Reliable, consistent and uniform financial reporting is important part of good corporate governance practices worldwide in order to enhance the credibility of the businesses in the eyes of investors to take informed investment decisions. In...

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Highlights of Economic Survey 2010 – 11

Posted: 25 Feb 2011 06:37 PM PST


Following are the highlights of Economic Survey 2010 – 11:• Economy expected to grow at 8.6% in 2010-11 and 9 per cent in next fiscal• Growth broad based with rebound in Agriculture, continued momentum in manufacturing and private services

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RBI to float discussion paper on deregulating savings a/c rate

Posted: 25 Feb 2011 06:13 PM PST


The Reserve Bank today said it will come out with a discussion paper on deregulation of interest rates on savings account."There is a view that we should deregulate the interest rate on savings bank accounts too. We are examining the pros and cons...

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RBI tells banks to stop re-circulation of soiled notes

Posted: 25 Feb 2011 05:56 PM PST


Soiled notes may soon be a thing of past as the Reserve Bank has asked all bank branches handling large amounts of currency to put in place note-sorting machines by the end of next month with a view to halting re-circulation of unfit currency notes.

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Railway Budget 2011-12- All You want to know

Posted: 25 Feb 2011 05:45 PM PST


No hike in passenger fare and freight rates No hike in the passenger fare and freight rate has been proposed in the Railway Budget 2011-12. The Budget with highest ever plan outlay of Rs. 57,630 crore will have Rs. 9,583 crore for new railway lines...

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I-T Dept slaps Rs 450 crore demand on Infosys

Posted: 25 Feb 2011 04:14 PM PST


The Income Tax Department has slapped a tax demand of over Rs 450 crore on software giant Infosys Technologies for wrongfully claiming tax exemption on onshore services by declaring them as software exports, Parliament was informed today.

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Expenses Disallowed under section 40A(3) and 40A(3A) of Income Tax Act 1961

Posted: 25 Feb 2011 07:48 AM PST


Section 40A(3) of Income Tax Act 1961 provides for disallowance of expenses in respect of which a payment or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on bank or account payee bank draft,...

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Once estimation of income is made, further disallowances u/s. 40(a)(ia) are not warranted

Posted: 25 Feb 2011 07:40 AM PST


Where income of the assessee having been determined by resorting to estimation, there is no scope for any further disallowance either in terms of section 40(a)(ia)/40A(3) or otherwise.

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After acquisition and vesting of all rights of a land in State, mere speculative right to receive compensation/enhanced compensation is not and cannot possibly be treated as an asset under section 2(ea) of the Wealth-tax Act

Posted: 25 Feb 2011 07:39 AM PST


As soon as the land of the assessee is requisitioned and stood vested in the State, he does not remain its owner and the mere inchoate right to receive the enhanced compensation cannot possibly be treated as assets and included in his wealth...

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Penalty proceedings – Whenever an addition/disallowance is made, initial burden is upon assessee to prove that it is not his concealed income or he has not furnished inaccurate particulars of such income

Posted: 25 Feb 2011 07:37 AM PST


When an explanation is offered, the onus stands shifted on to the Revenue whereby it has to be shown that the explanation offered by the assessee is false or assessee has not been able to substantiate his explanation and failed to prove that such...

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Second hand machinery purchased for use as spare parts for existing old machineries has to be considered as an allowable expenditure on revenue side

Posted: 25 Feb 2011 07:26 AM PST


When an assessee purchases the spare parts for the existing machineries, same cannot be treated as capital expenditure and it has to be treated as revenue expenditure since these spare parts are purchased for the maintenance of the existing...

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Service of maintenance and repair should be under a Maintenance or Repair Contract/Agreement to attract levy of service tax prior to 16-6-2005

Posted: 25 Feb 2011 07:24 AM PST


Where there was no separate maintenance/repair contract between the parties, the Commissioner had rightly held that in the absence of any maintenance & repair contract, the demand based on rate or value contract work was not sustainable.

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When assessee is engaged in business of buying and selling shares, profit or loss on such shares would be profit and loss of such business unless assessee establishes that shares in question were bought as a long term investment

Posted: 25 Feb 2011 07:22 AM PST


In a case where a company is dealing in the sale and purchase of shares, prima-facie the profits derived from the sale and purchase of shares would be treated to be business income of the assessee since the assessee is a trader in shares, that does...

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Cross-border transaction- TPO/AO, before he determines arm's length price in relation to income from an international transaction, needs to give appropriate notice to assessee, giving him an opportunity to produce evidence in support of arm's length price computed by him

Posted: 25 Feb 2011 06:25 AM PST


In case the TPO/AO proposes to make adjustments to the income of the assessee by revising the arm's length price computed by him, he needs to give a notice to the assessee, conveying the grounds on which the adjustment is proposed to be made,...

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Assessment of rental income- For purpose of assessment under head "profit and gains of business or profession", it shall be necessary that property acquired and used is for commercial purpose under business activity

Posted: 25 Feb 2011 06:03 AM PST


Where the investment made by the assessee while constructing the commercial complex seems to be a business investment, the rental income earned from the building as a natural consequence shall be business income.

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Assessee not entitled to depreciation on a plant which is not in operation since its capitalization

Posted: 25 Feb 2011 05:52 AM PST


Even after introduction of concept of block assets, identity of the individual assets are not lost and the Assessing Officer can restrict the depreciation having regard to the usage of a plant.

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Income from other sources- Investment or expenditure made in a company where there is no hope of earning profit shall not be covered by section 57(iii)

Posted: 25 Feb 2011 05:44 AM PST


The condition precedent to avail the benefit of section 57(iii) is that the investment must be proper and justified; proper investment means correct investment with intention to earn profit.

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Before invoking provisions of section 153A it would be necessary to comply with provisions of section 132(1) of the Income Tax Act, 1961

Posted: 25 Feb 2011 05:43 AM PST


Before invoking provisions of section 153A it would be necessary to comply with provisions contained under section 132(1) The purpose of section 132 for issue of warrant of authorization is to unearth, detect and to take possession of the...

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Space-selling service- Any services provided by any person to any other person in relation to sale of space would be taxable from 1-5-2006 and not prior to that date

Posted: 25 Feb 2011 05:43 AM PST


After specific category is introduced as a taxable service in the statute from a specified date, the said activity cannot be a taxable entity or technical entry in any other services prior to that date.

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A low rate of gross profit, in absence of any material pointing towards falsehood of accounts books, cannot by itself be a ground to reject account books under section 145(3)

Posted: 25 Feb 2011 05:42 AM PST


If the rate of gross profit declared by the assessee in a particular period is lower as compared to the gross profit declared by him in the preceding year, that may alert the Assessing Officer and serve as a warning to him, to look into the accounts...

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On invocation of action under section 13 of Securitisation Act by secured creditor, reference before BIFR would abate by virtue of third proviso to section 15(1) of SICA

Posted: 25 Feb 2011 05:12 AM PST


The third proviso under section 15(1) of the SICA relieves the specified strength of secured creditors from shackle of taking consent of the BIFR and permits them to pursue their remedy under the provisions of Securitisation Act, which have been...

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Special Auditor, to whom work is assigned, is very much at liberty, to insist upon payment of such fee/remuneration as he may deem adequate for work assigned to him

Posted: 25 Feb 2011 05:10 AM PST


If the remuneration demanded by the person proposed to be appointed as Special Auditor is not acceptable to the Chief Commissioner or the Commissioner, as the case may be, he may not assign the work to him; but, it would be difficult to accept that...

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Imposition of penalty-If claim made by assessee besides being incorrect in law is mala fide, Explanation 1 to section 271(1)(c) would come into play and work to his disadvantage

Posted: 25 Feb 2011 05:10 AM PST


If the assessee makes a claim which is not only incorrect in law but is also wholly without any basis and the explanation furnished by him for making such a claim is not found to be bona fide, it would be difficult to say that he would still not be...

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Rectification of computational error- A simple computational error can be resolved by rectifying an order of assessment under Section 154(1)

Posted: 25 Feb 2011 05:09 AM PST


It would be entirely arbitrary for the Assessing Officer to reopen the entire assessment under Section 147 to rectify an error or mistake which can be rectified under Section 154; an arbitrary exercise of power is certainly not a consequence which...

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Court should provide its own grounds and reasons for rejecting claim/prayer of a party

Posted: 25 Feb 2011 05:08 AM PST


Recording of reasons: Despite heavy quantum of cases in Courts, it would neither be permissible nor possible to state as a principle of law, that while exercising power of judicial review on administrative action and more particularly judgment of...

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Canvat Credit – Valuation of goods transferred by manufacturer to its sister concerns without any invoice

Posted: 25 Feb 2011 05:01 AM PST


The Explanation given by the CBEC vide its Circular No. 643/34/2002-CX dated 1-7-2002 cannot apply in the cases where the transaction value of the concerned goods is available on record; to ignore such value on the record and to take resort to the...

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Cenvat credit – Conditions for availing benefit under Notification No. 8/2003-CE dated 1-3-2003

Posted: 25 Feb 2011 05:00 AM PST


Cenvat credit : Manufacturers are not debarred from availing benefit under Notification No. 8/2003-CE dated 1-3-2003 in relation to goods other than goods which are excluded from benefit of said notification while simultaneously seeking to avail...

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Doctrine of mutuality does not apply in case business activities of an assessee-firm is not restricted to partners only

Posted: 25 Feb 2011 05:00 AM PST


Where an Association or Company trades with its members only and the surplus out of the common fund is distributable among the members, there is mutuality and the surplus is not assessable to tax as profit.

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Appellate Forums while reversing orders of AO are legally bound to dwell upon specific reasons assigned by AO for not accepting explanation of assessee that statement made by him u/s 132(4) was obtained under coercion and duress

Posted: 25 Feb 2011 04:59 AM PST


Where the AO has assigned cogent reasons for not accepting the retraction of the statement under section 132(4) by the assessee, but the Appellate Forums, without meeting the reasoning of the AO for not accepting the explanation of the assessee,...

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FERA- Where interest received by revenue was relatable to seized amounts from petitioners, which were invested in fixed deposits by revenue, petitioners would be entitled to accrued interest on such seized amounts

Posted: 25 Feb 2011 04:59 AM PST


There is no justification on the part of the revenue in retaining the amount of interest earned on the seized amount especially, on the touchstone of the doctrine of accretion.

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Bill Likely to Relax Rotation of Auditors

Posted: 25 Feb 2011 04:50 AM PST


In what could be a breather to India Inc, the corporate affairs ministry is proposing diluting norms for rotation of auditors and audit firms for companies in the new Companies Bill. The bill will be taken up for consideration in Parliament in the...

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Even if MOA of an trust contains varied objects, so long as record demonstrates that assessee only conducts educational institutions, it must be regarded as existing solely for purpose of education

Posted: 25 Feb 2011 04:22 AM PST


The fact that a surplus may incidentally arise from the activities of the trust, after meeting the expenditure incurred for conducting educational activities, would not disentitle the trust of the benefit of the provisions of Section 10(23C).

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India-Singapore DTAA- Technical services provided offshore do not require any deduction of tax at source

Posted: 25 Feb 2011 04:18 AM PST


It was held that if technical services provided off-shore do not require any deduction of tax at source. In the . instant case, the services have been rendered off-shore though these are utilized in India and as per the; decision of the...

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Making a wrong claim is not at par with concealment or giving of inaccurate information, which may call for levy of penalty under section 271(1)(c)

Posted: 25 Feb 2011 04:18 AM PST


In order to apply the provisions of section 271(1)(c), there has to be concealment of particulars of the income of the assessee; the assessee must have furnished inaccurate particulars of his income.

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Cenvat Credit – To avail credit lawfully, raw material, on which same is sought to be availed, must be utilized in manufacture of final dutiable product and credit earned thereon should also be utilized for payment of duty on final product

Posted: 25 Feb 2011 04:16 AM PST


Till and until both the credit earned and the product on which the credit is earned are lawfully utilized, it cannot be said that the credit has been lawfully and completely utilized; of course, the utilization of credit and utilization of input may...

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Section 127 mandates that assessee must be given a reasonable opportunity of being heard while exercising power to transfer cases

Posted: 25 Feb 2011 04:15 AM PST


Where the assessee was not provided with any opportunity of being heard in the matter, the reasons assigned in the order which was "administrative convenience and for co-ordinating effective investigation" also could not be said to be the reasons as...

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There is no provision in section 148(1) stating that after objection is received, a detailed order of rejection has to be passed before passing final order of reassessment

Posted: 25 Feb 2011 04:05 AM PST


Even if there is any lacuna in the procedure followed by the Assessing Authority while rejecting the objections raised by the assessee against the notices issued under sections 147 and 148(1), it is not as if the assessee is left in lurch and...

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Proceedings u/s 163 are only intended to ensure that a person can be regarded as a representative assessee only on existence of certain conditions

Posted: 25 Feb 2011 03:56 AM PST


The fact that the Agent has deducted tax under section 195 will not be a bar to proceed and pass an order under section 163 against the agent

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Limitation to proceed under section 13 (2) and 13 (4) of SARFAESI Act, 2002?

Posted: 25 Feb 2011 03:37 AM PST


Despite the clear objective behind enacting SARFAESI Act, 2002, while implementing the provisions of the Act, many complications have arisen and the Hon'ble Courts have cleared some complications making a good balance between the interests of the...

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No disallowance can be made in case of payment to non-residents in view of Article 26(3) of the DTAA between India and the USA

Posted: 25 Feb 2011 03:21 AM PST


In a recent decision, in the case of CIT v. Vasisth Chay Vyapar Ltd. (Delhi High Court) [ITA 552/2005] dated 29 November, 2010 , the Delhi High Court in the context of loans given by a Non-Banking Financial Company ("NBFC") held that in a scenario...

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Interest on Non Performing Assets which is doubtful of recovery, taxable on receipt basis

Posted: 25 Feb 2011 03:20 AM PST


In a recent decision, in the case of CIT v. Vasisth Chay Vyapar Ltd. (Delhi High Court) [ITA 552/2005] dated 29 November, 2010 , the Delhi High Court in the context of loans given by a Non-Banking Financial Company ("NBFC") held that in a scenario...

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Capital gains arising from transfer of the Development right to attract the provisions Section 50C of the Act

Posted: 25 Feb 2011 02:59 AM PST


Recently, the Mumbai bench of Income-tax Appellate Tribunal (the Tribunal) in the case of Arif Akhatar Husssain (ITA No. 541/Mum/2010) held that the provisions of Section 50C of the Income-tax Act, 1961 (the Act) is applicable to the capital gains...

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Hyderabad Tribunal has ruled that only the expenses that have been incurred after the date of entering into agreement are liable for mark-up

Posted: 25 Feb 2011 02:50 AM PST


The Income Tax Appellate Tribunal (the "Tribunal") of Hyderabad, on 31 January 2011, pronounced its ruling in the case of M/s Convergys Information Management (India) (P) Ltd. Vs DCIT, Hyderabad, ITA No. 229/H/2009, on whether the expenses incurred...

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Continuing debit balance is not an "international transaction"

Posted: 25 Feb 2011 02:42 AM PST


The Mumbai bench of the Income Tax Appellate Tribunal ("ITAT") recently pronounced its ruling in the case of M/s Nimbus Communications Limited vs. ACIT Circle 11(1), Mumbai for Assessment Year 2004-05, ITA No. 659 7/Mum/09 , on transfer pricing...

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The assessee is not entitled to adjustment of 5 per cent as stipulated u/s 92C(2), where only one of the several methods specified u/s 92C(1) is applied by the assessee to determine the ALP

Posted: 25 Feb 2011 02:39 AM PST


During the assessment year 2005-06, the Taxpayer sold fabrics worth INR 66,101,237 to its associated enterprise, M/s Spin International Inc., incorporated in the U.S., and relied on the Comparable Uncontrolled Price Method ("CUP Method") to justify...

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Computation of gross profit margin should be based on audited accounts and should not be a notional figure.

Posted: 25 Feb 2011 02:38 AM PST


The Mumbai bench of the Income Tax Appellate Tribunal (Tribunal) recently pronounced its ruling in the case of Monsanto Holdings Private Limited vs. Dy. Commissioner of Income Tax Range - 8(2) (Mumbai Bench), ITA No: 9130/Ml/2010 , on transfer...

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