Thursday, September 27, 2012
Notwithstanding Loan at High Rate of Interest, Share capital Gain cannot be assumed as Business Profit and will be treated as Capital Gains
A
capital investment and resale do not lose their capital nature merely because
the resale was foreseen and contemplated when the investment was made and the
possibility of enhanced values motivated the investment.
It
was held by the Gujarat High Court that the character of the transaction in
question to be one of capital gain and not an adventure in the nature of
business or trade and cannot be construed as business profits but to be
assessed as capital gains.
Interest paid by a branch of a Foreign Bank to its Head Office is deductible in the hands of the branch?
Interest paid by a branch of a Foreign Bank
to its Head Office is deductible in the hands of the branch?
CASE: ABN AMRO Bank NV vs. CIT
Sections: section 90 of the Income-Tax Act, 1961,
Facts
Calcutta High Court in its verdict opined
that the appellant before us is a foreign company
incorporated in Netherlands and having its principal branch
office in India. In course of its banking activities the appellant’s said
branch in India remits substantial funds to its head office as payment of
interest.
There is a continuous process
of the said branch receiving interest from its head office and other branches
and remitting of interest by
the branch to the head office
and other branches.
There are principally only two issues in this appeal, namely,
1. Whether interest payment made
by the Indian branch of the appellant to its head office abroad was to be
allowed as a deduction in computing the profits of the appellant’s branch in
India?
2. Whether in making such payment
to the head office, the appellant’s said branch was required to deduct tax at
source under Section 195 of the said Act?
Under section 90 of the Income-Tax Act, 1961,the Government of India has
entered into the above agreement with the government of Netherland for relief of tax and avoidance of
double taxation. The appellant is an assessee to whom such agreement applies.
Therefore, for the purpose of relief of tax which is related to avoidance of
double taxation, a more beneficial provision amongst rival provisions in the
agreement and the Act will apply to the assessee.
Therefore, if no tax is deductible under section 195(1) & section
40(a)(i) of the Income Tax Act , 1961 will not come in the way of the appellant
claiming such deduction as from its income. Therefore, in the circumstances the
appellant would be entitled todeduct such interest paid, as permitted by the
convention or agreement, in the computation of its income.
WHETHER TRANSACTION BETWEEN London head office of the assessee and its branch in India tantamount to Sale ?
WHETHER TRANSACTION BETWEEN London head office of the assessee and its branch in India tantamount to Sale ?
Case: Betts Hartley Huett and Co Ltd vs Commissioner of Income Tax,West Bengal-II Calcutta
Facts
A Division Bench was concerned with a transaction between the London head office of the assessee and its branch in India. The question before the court was whether it was sale. The court held in construing the transaction that the head office and the branch office being parts of the same entity there could not be a sale by the head office to itself, that is, the branch office.
Wednesday, September 26, 2012
Tax Residency Certificates (TRC) FOR NON-RESIDENT INVESTORS IN INDIA
Tax Residency Certificates (TRC) FOR NON-RESIDENT INVESTORS IN INDIA
All foreign investors will have to produce tax residency certificates (TRC) of their base nation to claim benefits under the double taxation avoidance treaty from April 1, 2013, says a government notification.
The amendments to the Income Tax Act, 1961, the Central Board of Direct Taxes (CBDT) said, will take effect from April 1, 2013 and will apply in relation to the assessment year 2013-14 and subsequent years.
The notification amends Section 90 and Section 90A of the Act dealing with taxation of foreign investment and tax benefits under the Double Taxation Avoidance Agreements (DTAAs). Currently, India has a total of84 DTAAs with foreign countries.
The TRC for availing tax benefits was proposed in the 2012-13 Budget, presented by the then Finance Minister Pranab Mukherjee.The TRC to be obtained by an assessee, not being a resident in India,from the Government of the country or the specified territory, shall contain the name of the assessee, status as to whether it is anindividual or company, its nationality and country wherein it is
registered or incorporated.
Besides, the TRC should also have the tax identification number of the assessee, its residential status for the purposes of tax, period for which the TRC is applicable and address of the assessee during that
period.
Under a clause in the DTAA entered into between two countries, the assessee can take the advantage of paying capital gains tax in either of the two nations.
Sunday, September 23, 2012
Development expense for website is revenue expenditure and amount advanced for it if become unrecoverable is allowable as “Bad Debt”
Development expense for website is revenue
expenditure and amount advanced for it if become unrecoverable is allowable as
“Bad Debt”
Case ; DCIT vs M/s Edelweiss Capital Ltd.
Section :28 of
the Income-Tax Act ,1961
Facts
The ITAT , Mumbai in this case was of the
view that if the expenditure on the development websites,
the expenditure could not have been regarded as capital expenditure since the website is put up for
the purposes of day-to-day running of the business
and even if one were to view that some enduring benefit is
obtained by the assessee, the benefit cannot be said to accrue to the assessee
in the capital field.
A website is
something where full information about the assessee’s business is given and it
helps the assessee’s customers in dealing with it. A website constantly needs updating, otherwise it
may become obsolete. It helps in the smooth and efficient running of the
day-to-day business. The expenditure would have been allowable as
revenue expenditure; as a corollary, when the website did not materialize, the
amounts advanced to the companies who were engaged to develop the websites, when they became irrecoverable,
can be written off and claimed as loss incidental to the business. The loss is
thus allowable as business loss in terms of section 28 of the Act
Friday, September 21, 2012
Is the expenditure incurred on payment of retrenchment compensation and interest on money borrowed for payment of retrenchment compensation on closure of one of the textile manufacturing units of the assessee-company revenue in nature?
Is the
expenditure incurred on payment of retrenchment compensation and interest on
money borrowed for payment of retrenchment compensation on closure of one of
the textile manufacturing units of the assessee-company revenue in nature?
Case : CIT
v. DCM Ltd. (2010) 320 ITR 307 (Delhi)
Facts
The company claimed deduction of retrenchment
compensation paid to employees of the unit which had been closed down and
interest on money borrowed for payment of retrenchment compensation.
Apex Court in CIT v. Prithvi Insurance Co. (1967) 63 ITR
632 and arrived at the conclusion that there was interconnection, interlacing and unity of control
and management, common decision making mechanism and use of common funds in respect of all the
four units.
The High Court was of the opinion that the
payment of compensation to workers on closure of a textile mill unit is treated as a revenue expenditure
since after closure of the unit, the remaining business continued and there was
inter-connection in the functioning of the different units. Therefore, it
follows that if compensation is paid to workers on closure of the entire
business, the same would be a capital expenditure.
Can the expenditure incurred by the assessee on techno-economic feasibility report for the manufacture of a new product be eligible for deduction under section 35D?
Can
the expenditure incurred by the assessee on techno-economic feasibility report
for the manufacture of a new product be eligible for deduction under section
35D?
Case : CIT
v. Tamil Nadu Road Development Co. Ltd. (2009) 316 ITR 380 (Mad.)
Section
: 35D of the Indian Income-Tax Act ,1961
The assessee-company engaged in
the business of implementation of the industrial policy and creation of
infrastructure facilities in the State of Tamil Nadu on a commercial framework
claimed deduction in respect of the expenditure incurred on account of
techno-economic feasibility report for the manufacture of new products. The
Assessing Officer disallowed the deduction treating it as a capital
expenditure. The Commissioner (Appeals) allowed the assessee's claim on the
finding that the expenses incurred were covered under section 35D of the Income-tax Act, 1961,
as the expenses were incurred to find out new ideas by conducting test studies and pilot studies
for improving the existing business and, therefore, could not be treated as
capital expenditure. This was confirmed by the Tribunal and the High
Court.
Subscribe to:
Posts (Atom)