Compiled by Chandra Prakash Bhatia, IRS
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FOR DEPARTMENTAL USE ONLY The Tributum (Income-tax Judgments of Hon’ble Gujarat High Court in favour of Revenue) Compiled by Chandra Prakash Bhatia, IRS 1 2 FOR DEPARTMENTAL USE ONLY The Tributum (A Brief Collection of Citations of Income Tax judgments of Hon’ble Gujarat High Court in favour of Revenue) “No matter what anyone may say about making the rich and the corporations pay taxes, in the end they come out of the people who toil” — Calvin Coolidge Compiled by Chandra Prakash Bhatia, IRS Room No 338, 3rd Floor, Aaykar Bhawan, Ashram Road, Ahmedabad. 3 THE BOOK HAS BEEN COMPILED FOR THE DEPARTMENTAL USE ONLY. HOWEVER, IT IS NOT AN OFFICIAL PUBLICATION OF THE CBDT, INCOME TAX DEPARTMENT OR THE GOVERNMENT OF INDIA. EVERY POSSIBLE PRECAUTION HAS BEEN TAKEN IN SELECTION OF RELEVANT CASE LAWS, SECTIONS AND KEY WORDS. CHANCES OF INADVERTENT ERRORS ARE POSSIBLE. READERS ARE ADVISED TO REFER TO THE ORIGINAL TEXTS OF THE RELEVANT CASE LAWS/JUDGMENTS/ORDERS, THE STATUS OF REVIEW PETITION FILED (IF ANY) AND SLP PREFERRED BEFORE HON’BLE SUPREME COURT BEFORE TAKING ANY ACTION OR FOLLOW UP OF LEGAL PROCEEDINGS. EDITOR OF THIS BOOK WILL NOT BE LIABLE FOR ANY LOSS INCURRED IN THIS REGARD. FOR THE SAKE OF CONVINIENCE, CASES RELATED TO DIRECT TAXES, OTHER THAN INCOME TAX HAVE BEEN OMITTED. CARE HAS BEEN TAKEN TO INCLUDE THE CASES RELATED TO SECTIONS ON STATUTE AND THEIR PRESENT RELEVANCE. PRESENT VOLUME COVERS IMPORTANT JUDGMENTS DELIVERED UP TO 30/06/2018. Front Cover –Office of the Principal Chief Commissioner, Gujarat- at Ashram Road, Ahmedabad, Photo Courtesy Sri K C Unnikrishnan, ITO. Ahmedabad. Back- The City of Amadavath (Ahmedabad), Drawing by Dutch traveller Father Philippus Baldaeus based on description of city around 1672. Appeared in his original Dutch book ‘A true and Exact Description of the Most Celebrated East-India Coast of Malabar and Coromandel and Also of the Isle of Ceylon’, later published in English. 4 5 DEDICATED TO THE TAXPAYERS OF GUJARAT 6 ABBREVIATIONS USED Sl Items Abb. form 1 Additional Commissioner of Income Tax Addl CIT 2 Additional Director of Income Tax Addl DIT 3 Assessing Officer AO 4 Assessment Year AY 5 Assistant Commissioner of Income Tax ACIT 6 Assistant Director of Income Tax ADIT 7 Chief Commissioner of Income Tax CCIT 8 Commissioner of Income Tax CIT 9 Commissioner of Income Tax (Appeals) CIT(A) 10 Criminal Appeal CA 11 Cross Objection CO 12 Departmental Representative DR 13 Deputy Commissioner of Income Tax DCIT 14 Deputy Director of Income Tax DDIT 15 Director General of Income Tax DGIT 16 Director of Income Tax DIT 17 Gujarat Guj 18 High Court HC 19 Income Tax Act 1961 IT Act 20 Income Tax Appeal ITA 21 Income Tax Appellate Tribunal ITAT 22 Income Tax Officer ITO 23 Income Tax Rules 1962 IT Rule 24 Income Tax Settlement Commission ITSC 25 Joint Commissioner of Income Tax JCIT 26 Joint Director of Income Tax JDIT 27 Long Term Capital Gains LTCG 28 Miscellaneous Application MA 29 Principal Chief Commissioner of Income Tax PCCIT 30 Principal Commissioner of Income Tax PCIT 31 Principal Director of Income Tax PDIT 32 Short Term Capital Gains STCG 33 Special Civil Application SCA 34 Special Leave Petition SLP 35 Supreme Court SC 36 Tax Appeal TA 37 Tax Recovery Officer TRO 38 Tax Deduction at Source TDS 39 Transfer Pricing TP 40 Under Section U/s 41 Union of India UOI 42 Wealth Tax Act 1957 WT Act 43 Writ Petition WP 7 CHAPTERWISE INDEX TO THE CASES Chapter Details Sections Involved Page No Chapter-I Preliminary 1-3 10-15 Chapter-II Basis of charge 4-9A 15-22 Chapter-III Incomes which do not form part of total income 10-13B 22-26 Chapter-IV IV- Computation of total income 14-14A 26-82 IVA- Salaries 15-17 IVC- Income from House Property 22-27 IVD- Profits and gains of business or profession 28-44DB IVE- Capital gains 45-55A IVF- Income from other sources 56-59 Chapter-V Income of other persons included in assessee’s 60-65 82-85 total income Chapter-VI VI - Aggregation of income and Set off or carry 66-69D 85-103 forward of loss 70-80 VIA - Deductions to be made in computing total 80A-80VVA income Chapter-VII Incomes forming part of total income on which no 86 income-tax is payable Chapter-VIII Rebates and reliefs 87-89 Chapter-IX Double Taxation Relief 90-91 Chapter-X X - Special provisions relating to avoidance of tax 92-94A 104 XA - General anti-avoidance Rule 95-102 Chapter-XI Additional income-tax on undistributed profits Chapter-XII XII - Determination of tax in certain special cases 110-115BBF 104-105 XIIA - Special provisions relating to certain 115C-115I incomes of non-residents XIIB - Special provisions relating to certain 115J-115JB companies XIIBA - Special provisions relating to certain 115JC-115JF limited liability partnerships XIIBB - Special provisions relating to conversion 115JG of Indian branch of a foreign bank into a subsidiary company XIIBC - Special provisions relating to foreign 115JH company said to be resident in India XIIC - Special provisions relating to retail trade etc. XIID - Special provisions relating to tax on 115O-115Q distributed profits of domestic companies XIIDA - special provisions relating to tax on 115QA-115QC distributed income of domestic company for buy- back of shares XIIE - Special provisions relating to tax on 115R-115T distributed income 8 XIIEA - special provisions relating to tax on 115TA-115TCA distributed income by securitisation trusts XIIEB - Special provisions relating to tax on 115TD-115TF accreted income of certain trusts and institutions XIIF - Special provisions relating to tax on income 115U received from venture capital companies and venture capital funds XIIFA - Special provisions relating to business 115UA trusts XIIFB - Special provisions relating to tax on 115UB income of investment funds and income received from such funds XIIG - Special provisions relating to income of 115V-115VZC shipping companies XIIH - Income-tax on fringe benefits 115W-115WM Chapter-XIII Income-tax Authorities 116-138 105-111 Chapter-XIV XIV - Procedure for assessment 139-158 111-134 XIVA - Special provision for avoiding repetitive 158A-158AA appeals XIVB - Special procedure for assessment of search 158B-158BI cases Chapter-XV Liability in special cases 159-180A 134-136 Chapter-XVI Special provisions applicable to firms 182-189A 136-136 Chapter-XVII Collection and recovery of tax 190-234E 136-141 Chapter-XVIII Relief respecting tax on dividends in certain cases 236-236A Chapter-XIX XIX - Refunds 237-245 141-146 XIXA - Settlement of cases 245A-245L XIXB - Advance rulings 245N-245V Chapter-XX XX - Appeals and revision 246-269 146-156 XXA - Acquisition of immovable properties in 269A-269S certain cases of transfer to counteract evasion of tax XXB - Requirement as to mode of acceptance 269SS-269TT payment or repayment in certain cases to counteract evasion of tax XXC - Purchase by central government of 269U-269UP immovable properties in certain cases of transfer Chapter-XXI Penalties imposable 270A-275 156-165 Chapter-XXII XXII - Offences and prosecutions 275A-280D 165-166 XXIIB - Tax credit certificates Chapter-XXIII Miscellaneous 281-298 166-169 Taxation and Business in Gujarat: Some 169-174 Historical Facts Key word Index 175-181 9 DECESIONS OF HON’BLE GUJARAT HIGH COURT IN FAVOUR OF REVENUE (INCOME TAX CASES) Sl. Income Related Key Words Summary of the Order/judgment Tax Sections section 1 2(1A) 260A Agricultural Kalpataru Agro Farms v. ITO, Ward -1 Income TAX APPEAL NO. 445 OF 2011 Where all three authorities (AO and Appellate) found that assessee's claim of income having been generated from agricultural operations was not believable and treated such income as assessee's undisclosed income, no question of law arise [2014[ 45 Taxmann.com 418(Gujarat) 2 2(1A) 45 Agricultural Sajjansinh N. Chauhan v. ITO Income TAX APPEAL NOS. 376 AND 377 OF 1999 AND CIVIL APPLICATION NO. 287 OF 2006 Capital gains Section 2(1A) of the Income-tax Act, 1961 - Agricultural income Section 45 of the Income-tax Act, 1961 - Capital gains - Chargeable as [2012] 25 Taxmann.com 105 (Gujarat) 3 2(14) STCL Patel Brass Works v. CIT IT REFERENCE NO. 61 OF 1995 Manufacturer assessee paid earnest money for supply of machinery but decided not to expand. Asked for a refund, supplier deducted cancellation charges. Assessee claimed short term loss, refused by AO. As assessee was not holding any capital asset, it could not be said that there was transfer of any capital asset - Assessee was not entitled to deduction of cancellation charges as short-term capital loss. [2007] 163 Taxman 279 (Gujarat) 4 2(14) Asset Ambalal Maganlal v. UOI SPECIAL CIVIL APPLICATION NO. 759 OF 1971 Writ Whether it was competent for Parliament to 10 enact section 2(14)(iii) so as to provide for tax on capital gains arising from sale of agricultural lands - Held, yes – Whether, therefore, section 2(14)(iii) is not violative of Article 14 of Constitution - Held, yes [1975] 98 ITR 237 (Gujarat) 5 2(14) 5 Accrual of Sureshchandra M. Shah v. ACIT income TAX APPEAL NO. 873 OF 2013 Chargeability Interest from investment in Kisan Vikas Patra is taxable on accrual basis [2014] 45 taxmann.com 490 (Gujarat) 6 2(14) 147 Capital asset Thakorbhai Maganbhai Patel v. ITO SPECIAL CIVIL APPLICATION NO. 4756 OF 2016 Reopening of Where assessee claimed his land to be an assessment agricultural land on basis of fake certificate, order of reopening of assessment could not be quashed [2016] 74 Taxmann.com 225 (Gujarat) 7 2(14) 2(45) STCG Patel Brass Works v.