Direct taxes :Interesting case laws

For Sec 41 of income tax act and its deeming provisions to apply, there must be a deduction of expenditure, loss or a trading liability in a previous year. The deduction for the loss, expenditure or trading liability should have been duly allowed by the assessing authorities. In the year where there is any recovery of such deduction in the form of recovery of loss or expenditure or where there is a remission of trading liability, the same shall be brought to tax as deemed profits u/s 41.

Treatment of expenses in relation to issue of bonus shares:

When Bonus shares are issued, they are just capitalisation of reserves and do not involve fresh issue of capital or dilution of equity base. They do not create any enduring benefit for the assessee. Therefore under the given cirucmstances, there is no way that expenses related to issue of bonus shares can be treated as capital expenditure. They are revenue expenses deductible from business income

Treatment of expenses incurred on behalf of sister concerns

The same will be allowed as business expenditure if proved to the satisfaction of the Assessing officer that the sister concerns are vital business interests of the assessee and incidental to its operations.

Additional grounds of appeal can be raised even at the tribunal stage even if not raised before the first appellate authority provided there are reasonable grounds for raising the appeal at a later stage and the intitial omission was not wilful with an intent to deceive.

Scientific research expenditure incurred need not be related to the assessee's business for availing the deduction u/s 35.

Amount paid to retiring partner of a firm out of accumulated profits will be considered distribution of accumulated capital of the firm and Sec 45(4) shall come into force as this transaction will be treated as a transfer u/s 2(47). Though it is intended to assume control over the firm, the payment is capital in nature

Holding company receives assets on voluntary liquidation of the 100% subsidiary , the transaction will not be treated as transfer by virtue of Sec 47 which deals with transactions not regarded as transfer. Sec 47 specifically provides that Where there is a transfer of a capital asset from 100% subsidiary to holding and holding company is an indian company, the transaction shall not be liable to tax.

Where a judgement for enhanced compensation has been appealed against by the IT authorities, the same shall not accrue or be taxed in the hands of the assessee until the finality of judgement in the high court.

Mere extension of an old building will not be construed as construction of a new house for purposes of claiming exemption u/s 54F

Distribution of capital asset on dissolution of a firm to ex partners to repay the debts owed to them in the form of capital contributed by them in the past will not be covered under the mischief rule of interpreting 45(4). In the above case, yes there is distribution of capital asset on dissolution but when the same is made to ex partners, the same shall not be considered transfer that would attract capital gains.

Even where a firm is dissolved and assets are distributed and thereby taken over by a partner for his own business, the transaction will be regarded a transfer and capital gains will be attracted in the hands of the firm u/s 45(4)

where a person is a partner in a firm as a karta in representative capacity of the HUF and where his wife is a partner in the firm, he cannot be considered to be holding substantial interest in the firm based on his representative capacity and therefore salary paid to his wife will not be clubbed in his hands.

Income is accumulated in a trust on behalf of the beneficiary who is a minor and will accrue to him only upon attaining majority age..therefore until then income does not accrue to the minor. The same shall not be clubbed as it is not ready to use by minor.

What is manufacturing is a moot question u/s 80IB,,A new identifiable product must emerge from the same to render a process as manufacture

For purposes of Sec 80P, godowns and warehouses form part of cold storage and such incomes from cold storage would be exempt.

The powers to transfer cases are contained under sec 127 of the IT act. The DGCC or commissioner will have the power to transfer cases from one assessing officer to another. The assessee will be given the opportunity to be heard but cannot demand that a particular officer or a particular area be the jurisdiction for assessment. The authority effecting the transfer will go ahead with the same if it is to his satisfaction that the area where cases are being transferred has some business connection with the assessee.

As far as Sec 147 reassessment proceedings are concerned, the same can be initiated only when the assessing authority has enough reason to believe and not mere reason to suspect that income has escaped assessment. The books of accounts of the previous year were found to be defective and best judgement assessment was carried out but the same cannot be a reason for assuming that income would have escaped assessment in the previous years. There should be material evidence in posession of the authority to prove that income has escaped assessment for a particular year

If the assessee has failed to claim a particular deduction in the original return, he may claim the same by filing a revised return within the stipulated time period. A question of law can also be raised in the presence of the ITAT provided it has an impact on the income tax liability of the assessee. This was a landmark judgement where for the first time a question of law was raised in front of the apellate tribunal instead of the courts in goetze India vs CIT

Where the assessee had made certain notings in his private diary and the same was not fully disclosed in the books of account, in respect of a sale transaction of a land, such diary if seized by IT authorities will tantamount to the difference being treated as undisclosed income liable to tax. The income shall be treated as income escaping assessment and notice shall be issued u/s148 as there is sufficient material in posession and reason to believe income has escaped assessment.

Where a method of accounting has been followed regularly by the assessee year on year consistently and the same has been accepted by the tribunal, the latter cannot disallow deductions by taking a contrary stand in a fresh assessment year

Failure to furnish audit report within prescribed time as required by sec 44AB will result in penalty proceedings being initiated by AO u/s 271B. The assessee will be given an opportunity of being heard and if his reply is not convincing penal provisions will have effect. But if AO does not initiate action against the assessee then the order can be considered prejudicial to revenue and Sec 263 revisionary powers of the commissioner shall have effect.

Where penalty has been levied under Sec 271 C for not deducting tax at source, the same cannot be levied again for non payment and non filing of return as where no tax has been deducted, the question of payment and filing of TDS returns do not arise. Its a matter of substance over form. Penalty can be levied only once in respect of a particular offence. There can be no levy of penalty for an offence arising as a consequence to the offence for which penalty has already been levied.

Before the assessing officer embarks on a search mission u/s 132, if the Assessee discloses his income he can escape levy of penalty for concealment

Once a revised return has been accepted by the assessing officer or the department, the same cannot be acted upon for levy of penalty. A revised return is filed to rectify a defect in the original return and hence the same cannot be proceeded against with penal proceedings post filing of the same.

Sec 194 H does not apply to stamp vendors whereby stamp papers are sold at a discount to such vendors by the treasury. These stamp vendors are not considered agents of the treasury and no tax shall be deductible at source. These are just buyers and they are not rendering any service for them to charge commission. They are merely buying and selling and thats not service

For sec 194C to apply whats relevant is a contract for work and not a contract for sale. A contract for sale will not attract TDS provisions.

Sec 195 provisions shall apply to any payment in the nature or which carries the character of income

U/s 206C, TDS on liour price will be deducted inclusive of excise duty and relevant taxes as purchase price includes all of that

All the justification u need to invest

So does this mean that now is the time to get back into the market? Is the worst now over for investors or are we simply experiencing a bear market rally? No one really knows, and in reality we will only ever know for sure with the benefit of hindsight.

The reason I highlight this recent market strength is to point out an interesting irony that often acts to paralyze otherwise sensible investors. A peculiar facet of investor psychology is that there is often a significant disparity between what we think we will do in a given situation, and what we actually end up doing.

Back in March when the market was at a five year low, people were avoiding making purchases and quoting the maxim that you should never buy into a falling market. Most investors recognized that shares were cheap, but were fearful that losses would continue. Many investors said that they would only start to buy when things started to improve, and a new up-trend was established.

However when things did actually start to turn, fear and skepticism meant that many investors saw this as nothing more than a brief reprieve from the dominant downward trend. As the rally continued, the more it seemed inevitable that the market would soon turn, if for no other reason than profit taking.

Now in early June, following three months of amazing gains, most investors are still reluctant to enter the market. People are saying that the next leg down is just around the corner, and that the recent gains are unsustainable with stocks heavily over-bought. Now people are saying that they will buy on the next pull back.

Regardless of where the market actually goes from here, you can see that there is an obvious disconnect between expected behavior and actual behavior. The tragedy is that most novice investors, especially those that have been burnt, will only be tempted back into the markets after prolonged and significant gains are observed. That is, after the majority of the recovery has occurred. Of course, this also means that these investors will be buying closer to the top of the market, when there is greater downside risk.

Attempting to exactly time the bottom of the market is a difficult and distracting task and is not essential to long term success. If you believe that the market will be higher when you plan on selling, then thats all the justification you need to make a purchase. When it comes to investing it is not the journey that matters, but rather the destination.

Make the markets work for you

Investing after golden monday

The election verdict in India was totally unexpected. yes the exit polls were predicting a slender lead for UPA. But none expected them to get anywhere within striking distance of a majority. This was the ultimate gamechanger in market history, long after the verdict of 1991 where the P.V.Narasimha Rao govt won absolute majority and intitiated the first generation reforms under the able guidance of Mr.Manmohan Singh through the New Industrial Policy. The times that we are living in are so gloomy that this sort of a positive news has changed market sentiment overnight and can be judged to a large extent as putting us on the right path to get out of the bear market far earlier than expected. There is almost conviction amongst market participants that the lows of Oct 2008 will not be revisited even under highly stressful or catastrophic global events. The markets reacted with such high euphoria that we opened gap up on Monday morning with the sensex rising more than 2000 points and market operations halted for the rest of the day due to circuit filters getting breached. The velocity of this rally has taken the entire investing world by surprise with its speed and tearing momentum. The markets crossed 9000 on 23rd March 2009 breaking out of a channel formation and it was expected that the same would be a bullish reversal. Most of the auto, banking and interest rate sensitive stocks broke out of their respective patterns around this time, but none of us prognosticators expected the market to break above the 200 day moving average of 11000. The markets too faced a strong resistance at these levels and struggled throughout April consolidating around the moving average levels. I guess the fact that the market broke out from 9000 levels was the first opportunity for long only investors to get into the market and for the naysayers one more chance went abegging once the moving average levels were surpassed towards April end. Now where do we stand..Most of us have missed an entire 50% ride from the lows to 15000 given the pessimism (justified to an extent) and skepticism with which we viewed the surge and dismissed the same as a mere bear market rally. Yes, this might well still remain a bear market rally disguised as a new bull market. The rally was the result of extreme pessimism and disbelief amongst investors. The more and more analysts kept predicting doomsday scenarios predicting a 3 year bear market with further lows at 6000, investors were filled with negativity and their eyes could not see the opportunity that was presenting itself with stocks quoting at unbelievably cheap prices far lower than replacement costs or even cash value. Examples i can think of are Sesa Goa, Neyveli lignite, opto circuits etc. As investors saw markets rising from 8000 to 9000 and then 11000, they were just hoping for a correction to buy on dips and markets refused them the chance to do the same. The veering trend we witnessed from the lows of the satyam saga just kept pushing the market to consistently higher levels and then the masterstroke in the form of UPA poll verdict. Now investors are smarting from the lost quarter. Mutual funds that were sitting on huge cash and thumbsucking all these months are facing difficult queries from investors about their underperformance. This rally which initially started of from 8000 as a liquidity fuelled rally from anglo saxon FII's was a reversal of risk aversion to a partial extent given the positive greenshoots and stimulus packages from various governments of the world in what was seen as a coordinated effort to restore the financial world and prevent a systemic crisis that might result in a debt deflation for the main economy. Throughout 2008 and early 2009, money was flowing into US treasury bonds for safety and reflected the risk aversion displayed by market participants. With stimulus packages being doled out dime a dozen and banks/financial institutions awash with liquidity, money had to chase profitable performance. Parking all the money in US bonds was only going to yield sub optimal returns. With Obama coming to power in the US and the new treasury secretary Geithner's Public private investment plan to recapitalise banks exuding confidence coupled with G20 promising coordinated action to restore financial stability, risk aversion had begun to scale down and money has started flowing into equities globally. Considering the fact that emerging markets are considered riskier, the indices have outperformed the SnP over the last few months.

However all is not lost for the value investors. They need to take a step back and look at what has happened over the last week or so in a clear and lucid manner.They should ask themselves tough questions like "What was not looking cheap at 9000, how is it looking cheap at 14000" before putting their money to work. We are already trading at more than 16 times FY 10 EPS which by no means is cheap. We must not follow the herd mentality and be branded as pioneers of the "greater fool theory" and end up buying the junk at high prices. What we saw from 3600 to 4500 was irrational exhuberance and lets allow some time for rationality to set in. Markets wont gallop in a tearing hurry from here on. They will give us opportunities time and again. Mr.Market is not a one way street. The market is not going to race away to 21000 from here and will take its pause, consolidate, yo-yo for some time and then come down before resuming its bullish ways. Remember the global recession is not over by any means and there's still some distance to travel before we wre completely out of the woods. Even from the domestic viewpoint, the fundamentals of the economy have not become buoyant all of a sudden. The problems on the export front have not disappeared. Having said that this rally of golden monday and tuesday has indeed created a disequilibrium in the market as explained in the theory of reflexivity by george soros. He evangelises the concept that just like how fundamentals can affect markets, market movement can also affect fundamentals which is largely acceptable and true. Its only the formation of a stable government at the centre without the leftist interference that has spurred sentiment favourably. There are expectations of reforms in various sectors of the economy and with political stability in place, business confidence is also set to rise. With FII's and hedge funds looking out for profitable avenues to park their money, they have zeroed in on India for the time being in the hope that many positive changes can happen here in quick time in an otherwise gloomy global setup.

Elliot wave chartists have also predicted that we have almost turned the corner as far as bear markets are concerned. We have already completed the five waves of a bear market from 21206 to 7697 and we are in the process of completing the balance 3 waves out of the total 8 waves of a bear market. We are in the last wave C of the bear market and that in my opinion has ended when the market came within kissing distance of 15000. So if you are an investor who believes in elliot wave theories, the next time we witness a solid fall to lower levels should be an opportunity to buy as the next rally we might witness on the upside might be sowing the seeds of a new multi year bull market which will take us to newer highs on the nifty and sensex over a period of time. Having said that, the probability of we tetsing the lows from here on is next to impossible. We will not fall below 9000 even under the worst global circumstances. I can say that with reasonable conviction now. The present pull back in the sensex over the last couple of days might continue until we reach 4000 on the nifty. Thats the support level where one can expect some more buying to happen. It would be prudent for investors to allocate 30-35% of their funds when the index scales back to 4000 on the nifty. The biggest advantage of having a pro reforms government is that business sentiment gets a huge fillip in such a short span of time. Banks start lending, IIP goes up, Capital flows reenter the country, FDI and private equity deals start happening again. To put it in a nutshell, the growth prospects of the economy appear positive and many global equity analysts will upgrade India and accord a premium valuation to frontline stocks as markets always factor/discount the future well in advance. The decoupling theories have already started doing the rounds in investor circles. The intelligent verdict of the indian populace to vote for a stable pro reform government has been the biggest greenshoot our economy has received so far.The key sensitivity or risk to buying Indian stocks can only be an abnormal slackening in the pace of reforms which might end up disappointing the markets at large. Also the other point investors should keep in mind is the fact that its the same beaten down stocks that are moving up again like the same real estate and commodity stocks, which some theorists point out is a continuation of the bear market.