Transcript Section 2(43): Under DTAA, tax includes education cess:

J.B. Nagar CPE Study Circle
Andheri (E) – September 2, 2012
Issues in Tax Audit
Presented by:
Yogesh A. Thar
Chartered Accountant
Friday, July 17, 2015
Yogesh A. Thar.
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Clause 4: Status
• Status of trusts formed as SPVs for realising
Non Performing Assets acquired from Banks
by issue of SR to the beneficiaries
• Status of trusts formed as SPVs for acquiring
Standard Assets from Banks by issue of PTCs
to the beneficiaries
• Trusts held as “individual” and not necessarily
AOP.
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Yogesh A. Thar.
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Clause 8: Nature of Business
• “money lending” – if interest is to be taxed as
“business income” or unrealisable advance is
to be claimed as a bad debt.
• Also if Exp to S. 73 or S. 2(22)(e) is an issue.
• “renting of immovable property” – if rental
income is to be offered as “business income”.
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Clause 12: Section 145A
• Excise Duty on finished goods: not “incurred”.
Hence not to be added to the closing stock value
u/s. 145A
– Loknete Balasaheb Desai SSL Ltd. 339 ITR 288 (Bom)
• Q: If not incurred, can there be a debit to the P&L
a/c. ?
• If the P&L a/c is debited, can the stock be valued
without considering such debit ?
• If P&L is debited, can the duty be allowed if paid
before the due date of ROI ?
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Yogesh A. Thar.
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Clause 14: Section-32-Depreciation
Non- compete rights are an “intangible asset” eligible
for depreciation.
• In favour:
– ACIT V. GE Plastics India Ltd. (Ahd.)(Trib.)
– ITO V. Medicorp Technologies India
506)(Chennai)(Trib.)
– ACIT V. Real Image Tech. (P.) Ltd. (Chn.)(Trib.)
– Tecumseh India (P.) Ltd. V. ADIT (SB)
Ltd.
(30
SOT
• Against:
– Paper Products Ltd. V. ACIT (Mum)(Trib.)
– Sharp Business Systems India Ltd. V. DCIT (Del.)(Trib.)
– Srivatsan Surveyors (P.) Ltd. V. ITO (32 SOT 268) (Chn.)(Trib.)
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Yogesh A. Thar.
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Clause 14: Section-32-Depreciation
(cont’d)
• Favour:
– Recent Supreme Court decision holding that depreciation is
allowable on goodwill arising on amalgamation
– B. Raveendran Pillai V. CIT (Ker.)(HC)
– CIT V. Hindustan Coca cola Beverages Pvt. Ltd (Del.)(HC);
• Against:
– Toyo Engineering (TS-361-ITAT-2012)(Mum)
• distinguished the Delhi HC ruling in Coca Cola disallowing the
assessee's claim for depreciation on goodwill.
– Metrex Technologies Ltd [TS-495-ITAT-2012(CHNY)]
• In the absence of specific valuation of assets / liabilities and
goodwill, the latter was only a book entry and did not represent
any commercial right.
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Clause 14: Section-32-Depreciation
(cont’d)
• WDV of assets acquired in amalgamation
includes unabsorbed depreciation in the hands of
amalgamating company.
• Explanation 3 to Sec. 43(6) providing unabsorbed
depreciation as deemed to be ‘actually allowed’ not
applicable.
• View taken in:
– CIT V. Hindutan Petroleum Corp. Ltd. (Bom.)(HC)
– M/s.EID Parry (India) Limited (TS-530-HC-2012)(MAD)(HC)
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Clause 16(b): Employee Contribution
• ESI of the employees of the contractor
deducted from salary, whether income u/s.
2(24)(x)?
– S. 2(24)(x) – sum received by the assessee from
“his employees”
– Assessee is the ‘principal employer’. Contractor is
the ‘immediate employer’
– PE liable if IE has no independent code no.
– Deeming fiction under ESI law cannot be extended
to IT Act.
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Clause 17(a)/(e): Capital Expenditure
• Business expenditure- Lease premium- Allowable if in the
nature of advance rent. Else, capital expenditure.
–
–
–
–
Krishak Bharati Cooperative Ltd. v. ACIT (Delhi)(High Court)
CIT V. HMT Ltd. (67 Taxman 506)
JCIT V. Mukund Ltd. (106 ITD 231)
DCIT V. Sun Pharmaceutical Ind. Ltd. (227 CTR 206)
• Pharma Companies – Gift to Doctors – whether offense
or prohibited by law? Proviso to sec. 37 applies?
– Recent circular of CBDT
– Indian Medical Council’s Regulations applicable to Doctors. Not
to Pharma Companies.
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Clause 17(f): Disallowance u/s 40(a)
• Short deduction of TDS not disallowable
– DCIT v. Chandabhoy & Jassobhoy 49 SOT 448 (Mum)
– DCIT v. S.K. Tekriwak 48 SOT 515 (Kol)
• Disallowance limited only to amounts “payable”
and not that are actually paid during the year
– Merilyn Shipping & Transport ITA 477/Viz/2008
• Foreign income tax: not disallowable u/s. 40(a)(ii)
– “tax” definition in S. 2(43) – “this Act”
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Clause 17(k): Contingent liability
• Business expenditure- ESOP / Sweat Equity
– CIT v. PVP Ventures Limited (Mad.)(High Court) – once
option is exercised, the liability gets ascertained and
cannot be disallowed as contingent.
– ACIT v. Spray Engineering Devices Ltd (Chandigarh)(Trib) –
liability towards sweat equity is ascertained liability on the
date of passing the resolution. Mere non allotment does
not render the same as contingent.
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Clause 17(l): Section-14A
• CIT V. Delite Enterprises ITA 110/09
(Bom)(HC):
– S.14A: Business expenditure-Disallowance-Exempt
Income-Tax free investmentsDisallowance under section 14A cannot be
made if tax-free investments capable of taxable
income.
– Further, as no taxable income was actually earned
by the assessee, disallowance u/s 14A was not
sustainable.
• Avshesh Mercantile P. Ltd v. DCIT ITA
5779/Mum/2006 ( Mum.)(Trib)
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Clause 17(l): Section-14A (cont’d)
• Shares held as stock-in-trade, whether 14A
applies?
– Indian Bank’s case 56 ITR (SC)
– CCI Ltd. v. JCIT ITA 359/2011 dt 28.2.12
– Yatish Trading Co. v. ACIT 129 ITD 237 (Mum)
– JCIT v. American Express Bank Ltd. (Mum-Trib).
ITA 5904/M/2000 dt. 8.8.12.
• 339 ITR 296 (Ker) and 117 ITD 169 (SB) considered
• CCI – not considered
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Clause 17(l): Section-14A (cont’d)
• Mixed Funds theory
– Reliance Utilities case 178 Taxman 135 (Bom)
– HDFC Bank ITA 4529/M/2005 dt 29.6.2011
– Shopper’s Stop ITA 1448/M/10 dt 30.8.2011
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Clause 21: Section 43B
• CIT v. Hindustan Latex Ltd (Ker.) ( High Court) :
– Deductions on actual payment-Business expenditureConstitutional validity-Section 43B(f),which allows deduction for
leave encashment only on payment basis is ultra vires. In any
event, it does not cover premium paid to insurer. (S.37
(1),Constitution of India Art 226 )
•
Also See:
– Exide Industries Ltd vs. Union of India 292 ITR 470 (Kolkata High
Court )
– Exide Industries Ltd vs. Union of India (SC)
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Clause 21: Section 43B (cont’d)
• Exgratia / good work reward – whether
“bonus” and hence liable for disallowance u/s.
43B if unpaid till due date?
– CIT v. Autopins (India) 192 ITR 161 (Del)
– Shriram Pistons v. CIT 307 ITR 363 (Del)
• Interest payable: Whether foreign banks are
“scheduled banks” ?
– Some are Scheduled Banks. But not foreign
branches. RBI Act applies only to India.
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Clause 25: B/F Depreciation
• Unabsorbed depreciation of the years 1997-98
to 2001-02 allowed indefinitely
– General Motors India P. Ltd. V. DCIT Special Civil
Application No. 1773 of 2012. Order dt 23.8.12
• Cir. 14 of 2001 interpreted
– Special Bench decision in Times Guarantee’s case
was Against the Assessee.
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Clause 27: TDS
• TDS u/s. 194-I not attracted on mere reimbursement of
rent to holding company as there is no lessor- lessee
relationship.
– Result Services Pvt. Ltd [TS-473-ITAT- 2012(DEL)]:
• Holding company as lessee paid rent directly to landlords after deducting
tax u/s 194-I. No lessor-lessee relationship between assessee and holding
company
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Miscellaneous Issues
• Clause 29 – whether cost audit was carried out?
Companies (Cost Accounting) Rules, 2011. What if cost
audit was required but was not carried out?
• Effect of revision in Schedule VI.
– E.g. Secured Loans due within 1 year – where to be shown
in Annexure I?
– Quantitative details?
• S. 44AB compliance is required only qua business and
not qua other income. Ghai Constructions case 184
Taxman 52 (Bom)
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Miscellaneous Issues (cont’d)
• Clause 18: Whether second tier subsidiary is
covered u/s. 40A(2)(b)?
• Clause 20: Whether loan write back is chargeable
to tax u/s. 41(1)?
– Loans used for capex;
– Loans used for trading expenses
• Clause 25(b): If the company was a closely held
company in the year of loss but became a widely
held company as a result of change in
shareholding, will section 79 apply?
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Thank you