Thursday, February 28, 2013

Recent Ruling on Income Tax

1. K. Gopi vs DCIT (ITAT)
 
Mere furnishing of affidavit and confirmation letters from the parties cannot itself prove the genuineness of the transaction as required u/s 68 of the IT Act.
 
2.  DIT vs. Prudential Assurance Company Ltd. (HC)
 
AAR Ruling - Binding Precedent- Subsequent advance ruling in third-party case does not supersede advance ruling obtained by the assessee. Therefore, reopening of assessment was not justified because the Authority for Advance Ruling’s finding in the assessee matter continued to govern the assessee assessment.
 
3. Scott R. Bayman vs CIT (HC)
 
The renovation expenditures paid by the employer on employer-provided accommodations are not taxed separately as income to the employee when the employer had already included the value of the accommodations in India in the employee’s taxable income.

Budget 2013

 
 
 
 
 
5. Memorandum
a.       Memorandum : Part 1
b.      Memorandum : Part 2
6. Schedule
a)          First Schedule
b)          Second Schedule
c)           Third Schedule
d)          Fourth Schedule
e)          Fifth Schedule
f)           Sixth Schedule
g)          Statements of Objects and Reasons


8. Memorandum Regarding Delegated

Finance Bill 2013 –Notes on Clauses & Schedule

1. Schedule
 
a)          First Schedule
b)          Second Schedule
c)           Third Schedule
d)          Fourth Schedule
e)          Fifth Schedule
f)           Sixth Schedule
          g)          Statements of Objects and Reasons
 
 

Budget 2013-14 –Personal Tax, Corporate Tax, Indirect Taxes & Miscellaneous - Highlights

Personal Tax
  • No changes in personal Income Tax slabs
  • Surcharge on super rich
  • Surcharge of 10% for income of Rs 1 cr or more per annum for one year
  • Surcharge to be applicable for individuals and corporate
  • 1% TDS for property sale worth more than Rs 50 lakh; agri land exempt
  • 5.5% tax to GDP ratio for direct tax
  • 4.5% tax to GDP ratio for indirect tax
  • Tax administration reform commission to be set up to strengthen the system
  • Our tax to GDP ratio is very low
  • Should reclaim 11.9% Tax-GDP ratio in short-term
  • There are 42,800 persons in the country who admitted to a taxable income exceeding Rs 1 cr per year
  • Tax credits of Rs 2000 to every person who has total income upto Rs 5 lakh
  • Donations to National Children’s Fund will be eligible for 100% tax deduction
  • Long-term infra bonds also eligible for tax deduction; additional Rs 1 lakh deduction for home loans
  • TDS on value of immovable property as transaction on immovable properties are usually undervalued
  • Extends tax cuts benefits to Rupee Infrastructure Funds
  • Educational Cess to continue at 3 %
  • Securitization Trust income to be exempt
  • Tax credit of Rs 2000 on incomes between Rs2-5 lakh
  • Tax on Royalty for services provided abroad increased by 10%
Corporate Tax 
  • CTT on non-commodities futures at 0.1%
  • Surcharge on DDT doubled to 10%
Indirect Taxes
  • No change in peak rate for CD non-agri products
  • Eco friendly concessions to be prolonged till 2015
  • Leather and goods duty reduced to 5%
  • Luxury cars import duty at 100%
  • Yachts duty at 25%
  • Luxury motorcycle duty at 75%
  • No change in customs duty of 10%
  • No change in excise duty or service tax
  • Precious, semi-precious duty reduced
  • Luxury motor vehicles to be taxed more
  • Baggage rules to permit bringing jewellery duty free limit raised to Rs 50000 for males and Rs 1 lakh for females
Miscellaneous
  • For housing loans limit till Rs 25 lakh – additional Rs 1 lakh exemption for 2013-14 for first time loan takers
  • Rs 50,000 cr tax free bonds to be allowed by select institutes
  • Inflation indexed Bonds and NSCs to be issued
  • SMEs to enjoy benefits for 3 years after they outgrow category
  • Fiscal deficit contained at 5.2%; target set at 4.8%
  • Direct benefit transfer scheme – 11 lakh have received benefits directly to bank accounts
  • Revenue deficit estimated at 3.3%
  • Seek same support of everybody to navigate the Indian economy through crisis
  • Global economy has slowed from 3.9% to 3.2%
  • Not unaffected what happens in the world
  • Current year CSO has estimated growth at 5% and RBI at 5.5% – below India’s potential growth rate of 8%
  • No reason for gloom or pessimism
  • Only China and Indonesia are growing faster than India
  • In 2013-14 only China will grow faster than India
  • Indian economy growing below potential of 8%
  • Goal of higher growth leading to inclusive and sustainable growth
  • Plurality and diversity lead to inequitable distribution which needs to be addressed
  • Women, SCs/STs and other backwards need to be included
  • Need to create economic space and achieve socio-economic objective
  • New Fiscal Consolidation measures undertaken to achieve 5.3%
  • Current Account Deficit major worry
  • CAD due to higher coal, oil and gold imports
  • We have to find 75 bn dollar to finance current account deficit
  • No solution but FDI, FII, ECB to bridge CAD
  • Achieving high growth is not a novelty and beyond our capacity
  • Without growth there will be no development and inclusiveness
  • UPA govt believes in inclusive development with emphasis on improving human development index
  • At present economic space is constrained
  • India doesn’t have the choice between welcoming and spurning foreign investment
  • Development must be sustainable and must have democratic legitimacy
  • The battle against inflation must be fought on all fronts
  • Our battle has brought down headline inflation to 7% and core inflation to 4%
  • Wisdom lies in finding current level of govt expenditure
  • Faced with huge fiscal deficit no choice but rationalise expenditure
  • We have retrieved some economic space
  • Sufficient funds to each ministry and departments
  • One overarching goal of the budget is to create opportunities for youth
  • Estimated expenditure Rs 1490925 lakh cr; Revised Rs 1430825 lakh cr
  • Planned expenditure will be 29.4% more than previous; all projects to be fully funded
  • Onus on ministries to completely projects in timely manner
  • Rs 41561 cr for SC sub plan
  • Rs 24500 cr to ST sub plan
  • The funds for sub plan cannot be diverted
  • Rs 77236 cr for child budget
  • Rs 200 cr for gender equality
  • Maulana Azad education foundation corpus gets Rs 160 cr more
  • Rs 110 cr for dept of disable welfare
  • Rs 37330 cr to ministry of health and family welfare out of which new national health mission to get Rs 21239 cr
  • Rs 4727 cr for medical education, training
  • Rs 1069 cr to department of ayush
  • Rs 1650 cr to AIIMS like institutions
  • Rs 65867 cr to HRD ministry
  • Rs 27258 cr for Sarva Siksha Abhiyan
  • Rs 3983 cr for Rashtriya Madhyamik Shiksha Abhiyan
  • Rs 13215 cr for mid-day meal scheme
  • Rs 17700 cr for children care and education
  • Rs 15260 cr for clean drinking water
  • Rs 1400 cr for water purification/ clean arsenic
  • Rs 80195 cr for MNREGA, Indira Awas Yojna, NREGS
  • PMGSY II to benefit states like Haryana, Punjab, Andhra Pradesh, Karnataka
  • Rs 14800 cr for JNNURM
  • Foodgrains production will be 250 mn tonne
  • Earned Rs 138403 cr due to agri exports
  • Rs 27049 cr for agri ministry
  • New scheme for rural road development
  • Rs 500 cr for crop diversification
  • The avg growth of agri was 3.6%
  • Agriculture to get over Rs 3000 cr
  • Green Revolution in eastern India has been a remarkable success – Rs 1000 cr to these states
  • Original Green Revolution states to get Rs 500 cr for crop diversification
  • Watershed management to get Rs 5387 cr
  • Rs 7 lakh agri credit target
  • National Institute for Biotech in Raipur, Chhattisgarh
  • National Livestock Mission to be launched in 2014 for which Rs 307 cr allocated
  • National biotech centre at Ranchi
  • National food security bill gets Rs 10000 cr towards incremental cost
  • Rs 50 cr for FPOs
  • Equity grants of Rs 10 lak per FPO
  • Rs 1000 cr for eastern Indian states
  • Rs 55 lakh cr needed for infra including private funds
  • Infra Debt Funds will be encouraged; 4 already floated
  • Rs 25,000 cr raised by institutions as tax free bonds in 2012-13
  • WB help to be taken for NE states to be connected with Myanmar
  • Godowns to be constructed with help of panchayats
  • USD 1 trillion investment in infrastructure
  • 47% of the cost will be shared by private sector
  • Infrastructure debt funds will be encouraged
  • 4 IDFs have been registered with SEBI
  • To allow some institutions to raise money through tax free bonds to the total of Rs 50000 cr
  • Rs 5000 cr for construction of warehouses
  • Regulatory Authority to oversee road projects
  • Zero CD for semi conductors/ electronics
  • First time Rs 12 lakh income limit increased from Rs 10 lakh for MF s
  • Rajiv Gandhi Equity scheme raised Rs 2 lakh cr
  • Rs 5000 cr to NABARD to finance construction of warehouses, silos, cold storages
  • New regulatory authority for road sector
  • 3000 km of road projects in some states will be awarded in first 6 months of 2013-14
  • Cabinet committee on investment to take up more projects
  • FM to approve Rs 50,000 cr tax-free bonds in FY14; moving on to infra, he says CCI is the answer to all policy hurdles
  • New instrument to save savings from inflation called as Inflation Index Bonds details of which will announced in due course
  • Seven new cities on Delhi-Mumbai corridor
  • New corridor is Bangalore-Mumbai industrial corridor
  • Two new ports – in Sagar in WB and one in AP
  • New outer harbour at Tuticorin through PPP
  • 5 inland waterways have been declared as national waterways, one more announced in Assam
  • Natural gas pricing policy would be reviewed
  • 5 MMTPA terminals will be fully operational
  • Non-tax benefits to be made available to MSMEs after they graduate to higher units
  • Textile tech upgradation to get Rs 2400 cr
  • Handloom workers to get working capital at concessional rates
  • SIDBI gets Rs 500 cr
  • Standing council of experts in ministry finance to analyse competitiveness of Indian financial sector
  • 13 PSU banks to get Rs 14000 cr in 2013-14 as capital infusion
  • All cooperative banks to be brought under CBS
  • All PSU banks to have ATMS at their premises
  • India’s first women bank as a PSU bank with Rs 1000 cr as initial capital
  • New fund for urban housing to get Rs 2000 cr
  • All towns with a population of 10000 or more will have a branch of LIC and one general insurance company
  • Group insurance schemes to be available for teachers, nurses
  • RSBY to be extended to rickshaw, autorickshaw, sanitation and mine workers
  • Rs 50 cr for textile ministry for apparel park
  • Rs 6000 cr for Rural Housing Fund
  • SEBI Act amendment under consideration
  • Investor with stake less than 10% will be taken as FII; more than that it will be taken as FDI
  • New scheme to encourage waste to energy projects
  • Clean and green energy is a priority
  • KYC of banks sufficient for insurance
  • Debt segment to be set up in Exchange
  • Rs 800 cr for Ministry of Non Renewable Energy
  • Hope Insurance and Pension Bills are passed soon
  • Rs 6000cr for Rural Housing Fund
  • Banks can act as insurance brokers
  • Defense expenditure at Rs 2 lakh cr appx
  • Rs 6275 cr for science and tech ministry
  • Rs 5580 cr for dept for atomic energy
  • Rs 100 cr each to AMU, BHU, Tata Institute of Social Sciences Guwahati, INTACH
  • National Institute of Sports Coaching in Patiala
  • Rs 532 cr for post offices to undertake banking activities
  • Rs 5880 cr to DAE
  • Over 800 FM channels will be auctioned
  • Gadar memorial in San Francisco to be upgraded
  • Donations to academic institutions and R&D to be treated as CSR
  • Mutual Fund distributors can now become members of Stock Exchange
  • Nirbhaya Fund for women’s security at Rs 1000 cr
  • Insurance, Provident Funds can trade directly in debt segments of stock exchanges

Finance Bill 2013

Dated: 28th Feb 2013
 
Chapter I
•             Preliminary   
 
Chapter II
•             Rates of Income Tax   
 
Chapter III
•             Income Tax   
•             Wealth Tax   
 
Chapter IV
•             Customs   
•             Excise   
 
Chapter V
•             Service Tax   
 
Chapter VI
 
Chapter VII
•             Commodities Transaction Tax  

Sunday, November 18, 2012

Capital gain or business income: classification of income from sale of securities


“Whether the ITAT  was right in holding that the gains from sale and purchase of various securities should be treated as long term capital gains or short term capital gains and not business income?”

CIT vs VINAY MITTAL (HC)

The assessee is an individual and an salaried employee for the A.Y 2007-08 he declared total income of Rs.  6,00,62,080/- as LTCG of  Rs. 2,59,52,165/- which was claimed as exempt and this included short term capital gains of  Rs. 5,53,32,591/- from sale and purchase of various securities.

The AO treated the income from the sale of the shares as business income and made additions accordingly. On appeal before CIT(A) and thereafter before ITAT deleted the additions made by the AO.

On appeal before Hon`ble High Court revenue accepted the assessee claim to treat the long term capital gains as exempt, however revenue disputed the treatment of lower rate of tax on the short  term capital gains.

Before Hon`ble High Court Assessee produced a chart giving details of the purchase and sale of the shares transactions which are subject matter of the A.Y 2007-08 that showed that the shares reported in his return as long-term capital assets were held for periods ranging between 1 year and 5 years and further, the shares reported in his return as short-term capital assets were held for periods ranging between 2 months and 11 months.

During the course of hearing ld. counsel for the Revenue relied on the Instruction No. 4/2007 dated 15 June 2007 issued by CDBT which in turn relied on several judicial precedents reported in CIT v. Associated Industrial Development Co. (P) Ltd. [1971] 82 ITR 586 (SC), CIT v. H. Holck Larsen [1986] 160 ITR 67 (SC), Fidelity Northstar Fund and Ors v. Unknown [2007] 288 ITR 641 (AAR) and advanced the following arguments to treat the sale of shares held for less than a year as business income. The Ld. DR also contented that the quantum of profit made from the sale was significantly higher than the dividend earned by the assessee. This indicated that the main purpose of the assessee was to earn profit. Since dealing in shares involves an element of uncertainty, the sale and purchase activities were in the nature of trade.

The Ld. DR also stated that the frequent transactions, the substantial scale of activities and the ratio of sales to purchase indicated that the assessee was in the business of buying and selling shares.

The Hon`ble High Court, observed that the assessee had salary income and also had maintained two separate portfolios i.e. investment portfolio and trading portfolio. The shares which were subject matter of short term capital gains formed part of the investment portfolio of the assessee. Although the number of shares sold was high, the numbers of transactions were few. Further, the period of holding was not insignificant or small, which indicated that the purchase of shares was in the nature of an investment. The ITAT had also previously determined that the assessee had earned substantial dividend income in the past years.

Hon`ble high court didn`t agree with the Revenue arguments that factors such as the risks inherent in the share purchase activity, the quantum of profits or the ratio of purchase to sale would influence the determination of the nature of income was There are inherent risks in any share related activity and also observed that in the year in which a assessee sells his investments, the ratio will always be in favour of sales and the frequency of transactions may therefore be higher. These cannot be concluding factors.

Relying on judgment reported in (2006) 193 TAXATION 581 (GUJ) upheld the ruling of the ITAT  that the gains arising from the sale of shares were in the nature of ‘capital gains’.

CBDT: Refund in cases - processing of e-returns of A.Y.s 2010-11 & 2011-12-reg


DIRECTORATE OF INCOME TAX (SYSTEMS)
ARA Centre, Ground Floor, E-2, Jhandewalan Extension,
New Delhi  110055
F.No. DIT(S) -III/CPC/2012-13                                                   
Dated: 16.11.2012
To,
The Chief Commissioner of Income Tax (CCAJ (By Name)
Ahmedabad/ Bangalore/ Bhubaneswar/ Bhopal/ Chandigarh/Chennai /Guwahati / Hyderabad / Jaipur / Kanpur / Kochi / Kolkata / Lucknow / Mumbai / Nagpur/ New Delhi / Patna / Pune.
Madam /Sir,
Clean up of demand uploaded to CPC - FAS before issue of Subject: - refund in cases - processing of e-returns of A.Y.s 2010-11 & 2011-12-reg
On the above subject, details of cases where refunds have been claimed in e-Returns for A.Y.s 2010-11 & 2011-12 and where assessing officer have uploaded demands to CPC portal, have been extracted and place on I-Taxnet. The data can be accessed on following path:
Resources downloads-DIT SYSTEMS-Processing of E-Returns of A.Y.s 2010- 11 & 2011-12 clean up of Demand uploaded to CPC
2.          The assessing officer are required to verify uploaded arrear demands in CPC portal in these cases and certify their correctness before they are considered for adjustment against refunds. This is to ensure that no undue hardship is faced by tax payer, consequently generating grievance.
3.         Each CCIT may, therefore, monitor this verification process and certify these demands within a period of 21 days. A compliance report may also be sent to respective Zonal Members, CBDT with copy to CIT (CPC) Bangalore at his e-mail id:

Yours faithfully 
(S. K. Mishra)
Director of Income Tax (S)-III
Copy to:
1.      Members, CBDT (along with zone wise executive summary)
2.      Director General of Income Tax (Systems).