Court : Income Tax Appellate Tribunal ITAT Mumbai
Reported in : (2000)74ITD225(Mum.)
..... it is also claimed that the amendment introduced by the finance act, 1987 relating to sections 27(iiia) and 27(iiib) are of a clarificatory nature and so have a retrospective ..... is also pleaded that from 1992 onwards, there has been a change in section 27 of the income-tax act by virtue of which it is the beneficial owner of the house property that has to be assessed in respect of the income from house property under section 22 of the income-tax act and not the legal owner. ..... realities as mentioned by the apex court in the above headnote which we have extracted, the apex court came to the conclusion that the requirement of compliance with the requirements of the transfer of the property act and registration act in the context of section 22 is not warranted. ..... , in the context of section 22 of the income-tax act, 1961, having regard to the ground realities and further having regard to the object of the income-tax act, namely, to tax the income, "owner" is a person who is entitled to receive income from a property in his ..... 6,03,800, being deductions under section 24(1) of the income-tax act for repairs] in the hands of ..... the provisions of section 27(iiia) and 27(iiib) provide for specific situations and we do not see how they give a blanket permission to the assessee to override the registration requirement laid down under the transfer of property act and the registration act.12. ..... is only in the context of deciding who is the owner for the purpose section 22 of the income-tax act, i.e. .....
Tag this Judgment!Court : Kolkata
Reported in : [2003]129TAXMAN628(Cal)
..... case, cost of acquisition as defined in section 55(2), as it stood prior to its amendment (finance act, 1987 effective from 1-4-1988), being unassessable, it could not be computed under section 48 and, therefore, it could not be chargeable as capital gains under section 45 as was held in b.c. ..... made hereinbefore and we answer the question referred to us in the manner following :what was received on transfer of the licence, a capital asset within the meaning of section 2(14), was not an income from business under section 28 more particularly under clause (iv) and though chargeable under the head 'capital gains under section 45 but since incomputable by reason of sections 48 and 49, read with section 55(2) in assessment year 1986-87, the same could not be assessed to capital gains. ..... subsequently, section 55 sub-section (2) was amended in order to avoid the implication of the ratio ..... sought for reference on two questions, which are as follows :'(i) whether, on the facts and in the circumstances of the case, and on correct interpretation of section 28(iv) of the income tax act, 1961, the tribunal was justified in law in holding that receipt of rs. ..... can be computed under section 48, it cannot be charged under the head 'capital gains in view of section 55(2), read with section 48(ii) and section 45 of the act. ..... capital asset then it had to be dealt with under the provision of sections 45 to 55 of the income tax act, 1961. ..... to state the case under section 256(1) of the income tax act, 1961. .....
Tag this Judgment!Court : Income Tax Appellate Tribunal ITAT Mumbai
Reported in : (2003)87ITD209(Mum.)
..... " he further submitted that section 195 of the act was amended by the finance act, 1987, to provide for deduction of tax at source on payment of certain sums to non-residents either at the time of credit of the same to their accounts or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever ..... , the assessee made an application for the remittance of the charter charges without deducting tax at source.according to the learned counsel for the assessee, although the ao has relied on section 9(1)(i) r/w section 5(2)(b) of the act, for taking the view that the charter charges are taxable in india, the arguments have been advanced by the learned departmental representative only on the issue of business connection in india. ..... any view, there is no transaction involved in the time charter party of the nature to attract the provisions of section 2(47) of the act and, therefore, this limb can also have no application.therefore, the provisions of section 9(1)(i) referring to "through or from any business connection in india" will have to be considered. ..... however, the expression and the language used in section 172 is mirrored in section 44b of the it act.section 44b is a special provision for computing profits and gains of shipping business in the case of non- ..... it was contended before the learned cit(a) that the provisions of section 9(1)(i) r/w section 5(2)(b) of the act were not applicable and that the charter charges were not taxable in india .....
Tag this Judgment!Court : Kolkata
Reported in : (2003)183CTR(Cal)67,[2003]262ITR1(Cal)
..... the cost of acquisition as defined in section 55(2), as it stood prior to its amendment (finance act, 1987 effective from april 1, 1988), being un-assessable, it could not be computed under section 48 and, therefore, it could not be chargeable as capital gains under section 45 as was held in b.c. ..... hereinbefore and we answer the question referred to us in the manner following ;what was received on transfer of the licence, a capital asset within the meaning of section 2(14), was not an income from business under section 28 more particularly under clause (iv) and though chargeable under the head 'capital gains' under section 45 but since incomputable by reason of sections 48 and 49, read with section 55(2) in assessment year 1986-87, the same could not be assessed to capital gains.16. ..... for reference on two questions, which are as follows :'(i) whether, on the facts and in the circumstances of the case, and on correct interpretation of section 28(iv) of the income-tax act, 1961, the tribunal was justified in law in holding that the receipt of rs. ..... subsequently, section 55, sub-section (2) was amended in order to avoid the implication of the ratio ..... can be computed under section 48, it cannot be charged under the head 'capital gains' in view of section 55(2), read with section 48(ii) and section 45 of the act. ..... capital asset then it had to be dealt with under the provisions of sections 45 to 55 of the income-tax act, 1961. ..... to state the case under section 256(1) of the income-tax act, 1961. .....
Tag this Judgment!Court : Income Tax Appellate Tribunal ITAT Pune
Reported in : (2006)152TAXMAN25(Pune.)
..... (47) of section 2 was amended by the finance act, 1987, w.e.f. ..... the completion of 'transfer' of an immovable property as per the general law is not a requirement for the applicability of the provisions of the sub-clause (v) of section 2(47) of the act as was held by the bombay high court in the case of chaturbhuj dwarkadas kapadia (supra).further, the assessee's plea that subsequently he filed suits which were pending, against the builder/developer with ..... new sub-clauses provide that 'transfer' includes (i) any transaction which allows possession to be retained in part performance of a contract of the nature referred to in section 53a of the transfer of property act; and (ii) any transaction entered into in any manner which has the effect of transferring or enabling the enjoyment of any immovable property. ..... it is seen that the sub-clause, (v) and (vi) of section 2(47) read as under : (v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53a of the transfer of property act, 1882 (4 of 1882); or (vi) any transaction, (whether by way of becoming a member of or acquiring shares in, a co-operative society, company or other aop or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring, ..... that no fsi was transferred within the meaning of section 2(47) of the act as there were no registered sale deeds. .....
Tag this Judgment!Court : Mumbai
Reported in : (2007)109BOMLR2273; (2007)212CTR(Bom)384; [2008]298ITR149(Bom)
..... made by the finance act of 1987 in section 43b inserting, inter alia, the first proviso was remedial in nature, designed to eliminate unintended consequences which may cause undue hardship to the assessee and which made the provision unworkable or unjust in a specific situation.it had been argued before the supreme court, that looking to the curative nature of the amendment made by the finance act of 1987, the proviso inserted by the amending finance act of 1987 should be given retrospective effect and be read as forming part of section 43b ..... . the finance act of 1987, therefore, treated section 43b(b) as a distinct class from the other provisions ..... the first proviso was also amended by the finance act, 2003 with effect from 1st april, 2004 by omitting the following words:referred to in clause (a) or clause (c) or clause (d) or clause (e) or clause (f).the section as it stood before the finance act, 2003, treated payments in respect of tax, duty, cess or fee, payment made to an employee, as bonus or commission or services rendered as set out therein any sum payable by the assessee as interest on any loan or borrowing from any public ..... . by section 21 of the finance act, 2003, the following amendments were incorporated in section 43b of the act, 2003.in the first proviso, the words, brackets and letters 'referred to in clause (a) or clause (c) or clause (d) or clause (e) or clause (f) have been omitted .....
Tag this Judgment!Court : Supreme Court of India
Reported in : AIR1997SC1361; [1997]224ITR677(SC); JT1997(3)SC418; 1997(2)SCALE575; (1997)3SCC472; [1997]2SCR780
..... the amendment which was made by the finance act of 1987 in section 43b by inserting, inter alia, the first proviso, was remedial in nature, designed to eliminate unintended consequences which may cause undue hardship to the assessee and which made the provision unworkable or unjust in a specific ..... to the curative nature of the amendment made by the finance act of 1987 it has been submitted before us that the proviso which is inserted by the amending finance act of 1987 should be given retrospective effect and be read as forming a part of section 43b from its inception. ..... the finance act, 1987, inserted a proviso to section 43b to provide that any sum payable by way of tax or duty, etc liability for which was incurred in the previous year will be allowed as a deduction, if it is actually paid by the due date of furnishing the return under section 139(1) of the income-tax act, in respect of the assessment year to which the aforesaid previous year ..... obviate this kind of unexpected outcome of section 43b, the first proviso was added in section 43b by the finance act of 1987. ..... the finance act, 1987, inserted a proviso to section 43b to provide that any sum payable by way of tax or duty, ..... memorandum of reasons takes note of the combined effect of section 43b and the first proviso inserted by the finance act, 1987. ..... this proviso was inserted by the finance act of 1987 which came into effect from ..... explanation 2 was added to section 43b by the finance act of 1989 with retrospective effect from .....
Tag this Judgment!Court : Chennai
Reported in : (2008)217CTR(Mad)416; [2008]301ITR345(Mad)
..... yet, the construction given to the amendment effected under the finance act of 1987 to section 2(47) is of relevance to the case on hand. ..... '; as such, it is not possible to accept the stand of the respondent that the transactions falling under section 53a of the transfer of property act for the purpose of considering the capital gains would fall for consideration for the purpose of considering the same as falling under long term capital asset only on and from the amendment inserted under the finance act, 1987, with effect from 1.4.1988. ..... the question then is, what will be the effect of the amendment brought forth to section 2(47) by the insertion of sub-clause (v) to section 2(47) relating to the definition of 'transfer' under the finance act, 1987 with effect from 1.4.1988. 47. ..... ' the apex court pointed out to the amendment to section 27 under the finance bill, 1987, to get over an obvious omission to the meaning of the word 'owner' under section 22 that even though in common law, 'owner' means a person who has got valid title legally conveyed to him after complying with the requirements of law under the transfer of property act and the registration act, having regard to the ground realities and the object of the act, namely, to tax income, in the .....
Tag this Judgment!Court : Mumbai
Reported in : 2001(3)ALLMR108; (2001)166CTR(Bom)7; [2001]249ITR265(Bom)
..... this connection, he placed reliance on the central board of direct taxes circular which clarified that in order to overcome the judicial interpretation the finance act, 1987, had provided in section 55(2)(a) that cost of acquisition in the case of goodwill will be taken as nil. ..... the circular specifically provides that for the purposes of bringing the capital gains arising from the transfer of tenancy rights in the acquisition of which the assessee has not incurred any expenditure, the finance act has amended to provide that the cost of acquisition of the tenancy rights should be taken at nil. ..... was contended that if all receipts were taxable as casual income at the rate of 35 per cent, then there was no point in the legislature bringing the amendment in section 55 with effect from april 1, 1995, under which the cost of acquisition of a capital asset could be regarded as nil because by bringing the said amendment the receipt is taxable at 20 per cent. ..... that in order to overcome the judicial view, the legislature had to amend the provisions of the income-tax act in order to take the cost of acquisition at nil so as to tax the amount under section 45 instead of section 56. ..... was urged that, in fact, the amendment of section 55 shows that because the cost of acquisition could not be computed the legislature had to step in and make the cost of acquisition at nil rate so that the capital gains arising on transfer of capital asset could be taxed under section 45 of the income-tax act. .....
Tag this Judgment!Court : Karnataka
Reported in : [2008]298ITR141(KAR); [2008]298ITR141(Karn)
..... the amendment which was made by the finance act of 1987 in section 43b by inserting, inter alia, the first proviso, was remedial in nature, designed to eliminate unintended consequences which may cause undue hardship to the assessee and which made the provision unworkable or unjust in a specific situation.in ..... or incurred' according to the method of accounting on the basis of which the profits or gains are computed.the learned counsel for respondents have submitted that the object and intendment of insertion of section 43b, by way of amendment to the act by the finance act with effect from 1-4-1984 stipulates, notwithstanding anything contained in the provisions of the income tax act, a deduction is allowable in respect of any sum payable by the assessee as an employer by way of contribution towards pf or other funds referred to under clause ..... if that provision is read along with the first proviso of the said section which was inserted by finance act, 1987 which came into effect from 1-4-1988, the letters numbered as clause (a) or (c) or (d) or (e) or (f) are omitted from the above proviso and, therefore, deduction towards the employer's contribution paid can be claimed by the assessee. .....
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