Court : Chennai
Reported in : (2004)187CTR(Mad)650; [2004]266ITR166(Mad)
..... 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 ..... considered the effect of the addition of the first proviso to section 43b by the finance act 1987, and held the same to be retrospective in operation. ..... it noticed the contents of the memorandum explaining the provisions of the finance bill 1983 wherein it had been stated inter alia that section 43b was aimed at curbing the practice of assessees not paying the taxes and not discharging their liabilities to ..... by the counsel for the revenue that parliament had a different intention so far as payments of amounts due under the employees provident fund act was concerned and that it had intended to treat that amount differently from the amount of tax which the assessees were required to pay. ..... revenue is as to whether the tribunal was right in restoring the order of the assessing officer in disallowing the provident fund contribution amounting to rs.1,47,584/- and administrative charges of rs.12,310/- under section 43b(b) of the act thereby reversing the order of the first appellate authority. ..... amendment was to give effect to the true intention behind the introduction of the section ..... referred to in the question were paid before the due date as defined in the explanation below clause (va) of sub-section (1) of section 36 of the act.3. .....
Tag this Judgment!Court : Mumbai
Reported in : 2004(2)BomCR801; (2004)187CTR(Bom)162; [2004]265ITR346(Bom)
..... therefore, instead of amending section 2(47), the amendment was carried out by the finance act, 1987, by omitting section 47(ii), the result of which is that distribution of capital assets on the dissolution of a firm would be regarded as 'transfer'. ..... to plug this loophole the finance act, 1987, brought on the statute book a new sub-section (4) in section 45 of the act. ..... 'sub-section (4) along with sub-section (3) were introduced by the finance act, 1987, with effect from april 1, 1988. ..... parliament with the avowed object of blocking this escape route for avoiding capital gains tax by the finance act, 1987, has introduced sub-section (3) to section 45. ..... it may be noted that all these judgments were previous to the amendment brought about by the act of 1987 which introduced sub-sections (3) and (4) in section 45, with effect from april 1, 1988. ..... prior to the finance act, 1987, in the case of a partnership it was held that the assets are of the partners and not of the partnership. ..... the finance act, 1987, with effect from april 1, 1988, omitted this clause, the effect of which is that distribution of capital assets on the dissolution of a firm would henceforth be regarded as 'transfer'. ..... as the section is a self-contained code, there was no need to amend the definition of transfer under section 2(47) of the act. .....
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 : 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 Hyderabad
Reported in : (2004)89ITD528(Hyd.)
..... the learned departmental representative, on the other hand, pleaded that there has been an amendment in explanation to section 73 brought out by the finance act, 1987, with effect from 1.4.1987, and the expression "other than a company as defined in clause (ii) of section 109" that figured in the said explanation earlier had been substituted by the expression--"other than a company, whose gross total income consists mainly of income which is chargeable under the heads "interest on securities', ..... learned counsel for the assessee, in reply, countered that omission of the reference to an investment company, in explanation to section 73 brought out by the finance act, 1987 is only consequential to the deletion of other sections like sections 104 to 109 of the income-tax act, and this omission has no bearing on the issued raised in this appeal.14. ..... one of the main objets of the appellant-company, as per the memorandum of association, after its amendment, reads as under:- "3.a) to carry on and undertake the business of hire -purchase, finance, investment in shares, stocks, debentures, bonds, securities and all other kinds of investments and trading and to finance business operations of all kinds, purchasing, selling, leasing, hiring or letting on hire all kinds of plant and machinery and equipment, computers vessels, vehicles all consumer, commercial ..... in the balance sheet as on 31.3.1997, is not very material for considering the application of the explanation to section 73 of the act. .....
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 : Rajasthan
Reported in : [2003]260ITR218(Raj); [2003]132STC298(Raj)
..... which was outstanding as on march 31, 1987, but paid by july 31, 1987, in total disregard of the provisions of section 43b as it stood before the amendment of the finance act, 1987, which provided disallowance of such liability.3. ..... of 1994, dated april 30, 1996, in respect of the assessment year 1987-88 :'whether, on the facts and in the circumstances of the case, and proper interpretation of law, the tribunal was legally justified in holding that the interest payable to the sales tax department is also 'tax' and the provisions of section 43b of the act are applicable therein ?'2. ..... on appeal the income-tax appellate tribunal analysing the provisions of section 43b and relying on the decision of this court in cit ..... of income-tax (appeals) arrived at the conclusion that the order under section 143(3) read with section 148 was erroneous and prejudicial to the interests of the revenue on account of the following mistakes :(1) the assessing officer failed to disallow under section 43b, the amount of rs. ..... assessing officer treated the said amount of unpaid interest as part of the sales tax and disallowed the same under section 43b of the income-tax act. ..... the object of section 43b is to curb the activities of those taxpayers who do not discharge their statutory liability of payment of sales tax or excise duty for long periods but claim deduction in that regard from the income on ..... a notice under section 148 was issued on march 26, 1991, in response to which the assessee-firm submitted .....
Tag this Judgment!Court : Income Tax Appellate Tribunal ITAT Mumbai
Reported in : (2004)91ITD116(Mum.)
..... " finance act, 1987, again amended section 80 with effect from 1st april, 1988 to include the reference to sub-section (3) of section 74 by the . ..... similarly, the direct tax laws (amendment) act, 1987 amended section 80 with effect from 1st april, 1989, substituting the words "in accordance with the provisions of sub-section (3) of section 139 or within such further time as may be allowed by the income-tax officer. ..... notwithstanding anything contained in this chapter, no loss which has not been determined in pursuance of a return filed under section 139, shall he carried forward and set off under sub-section (1) of section 72 or sub-section (2) of section 73 or sub-section (1) of section 74.the taxation laws (amendment) act, 1984 further amended section 80 with effect from 1st april, 1985, substituting the words under section 139' by the expression "within the time allowed under sub-section (1)of section 139 or within such further time as may be allowed by the income-tax officer. ..... the taxation laws (amendment) act, 1984 amended section 80 with effect from 1-4-1985 substituting the words 'under section 139' by the expression "within the time allowed under sub-section (1) of section 139 or within such further time as may be allowed by the income-tax officer". .....
Tag this Judgment!Court : Delhi
Reported in : (2004)88TTJ(Del)180
..... . finally, thereforee, we hold that the conditions laid down in section 2(22)(e) and explanationn 3 to section 2(22)(e) as amended by finance act, 1987, with effect from 1-4-1988, are satisfied in the case as under :'(i) all the above companies are such in which public are not substantially interested, i.e ..... . the amended provisions (amendment by finance act, 1987, with effect from 1-4-1988) are applicable in a case where a shareholder held 10 per cent on more of equity capital ..... . as regards the next contention that the amounts received from the said companies were not loans and advances but they were received on account of business transactions/sales and hence the provisions of section 2(22)(e) of the act were not applicable in the case, we are of the view that the assessed had failed to prove these contentions by furnishing details and evidences ..... . 1072/del/1995 for the assessment year 1991-92 in the assessed's own case and contended that since similar addition under section 2(22)(e) of the act was deleted by the learned commissioner (appeals) and his order was confirmed by the tribunal, the impugned addition under section 2(22)(e) in the assessment year 1990-91 covered under the present appeal should also be deleted ..... . the learned counsel for the assessed, on the other hand, submitted that the assessing officer was wrong in applying the provisions of section 2(22)(e) of the act and treating the loans and advances as deemed dividend in the hands of the assessed-huf .....
Tag this Judgment!Court : Income Tax Appellate Tribunal ITAT Delhi
Reported in : (2004)88TTJ(Delhi)280
..... " finally, therefore, we hold that the conditions laid down in section 2(22)(e) and explanation 3 to section 2(22)(e) as amended by finance act, 1987, with effect from 1-4-1988, are satisfied in the case as under : "(i) all the above companies are such in which public are not substantially interested, i.e. ..... , the contention of the learned counsel that we should follow the tribunal order for the assessment year 1991-92 and similarly uphold the commissioner (appeals)'s order for assessment year 1990-91 cannot be accepted.the amended provisions (amendment by finance act, 1987, with effect from 1-4-1988) are applicable in a case where a shareholder held 10 per cent on more of equity capital. ..... he further observed that the assessee-huf formed in assessment year 1982-83 and the income tax officer vide assessment order of that assessment year under section 143(3) of the act dated 30-3-1984, had held that the huf comprised of following persons he added that this order of the income tax officer had been accepted by the assessee and no appeal had been filed against the ..... by her.as regards the next contention that the amounts received from the said companies were not loans and advances but they were received on account of business transactions/sales and hence the provisions of section 2(22)(e) of the act were not applicable in the case, we are of the view that the assessee had failed to prove these contentions by furnishing details and evidences. .....
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