1.      Bombay High Court/BHC in Supreme Treves : In context of reopening after four years from end of relevant assessment year, after earlier 143(3)/regular assessment, on basis of disclosure contained in Notes to Accounts and P&L account (for claim of depreciation on Goodwill u/s 32 as Intangible asset), and distinguishing SC ruling in Rajesh Jhaveri 291 ITR 500 (stating that reliance placed by revenue is misplaced, as SC has itself stated that AO can reopen assessment u/s 148 if ingredients of section 147 are fulfilled), BHC has held that disclosure in P&L account etc is sufficient enough to attract protection given under Proviso to section 147 (restricting reopening after four year, unless assessee has not made true and full disclosure of material facts). Further reference in this connection may be made to BHC latest (18/3/2009) ruling in BANG securities wherein similar proposition is laid lown.

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2.      BHC in Sushila Chaturvedi: In context of taxability of civil contractor for receipts arising out of contracts (where annual receipts exceed Rs 40 lacs and section 44AD - presumptive taxation is not applicable) ,and where assessment is completed u/s 144 (best judgment assessment), BHC has upheld ITAT conclusion that since TDS/tax deduction rate u/s 194C is fixed @ 2%  of Gross receipts, same can be reasonably used to estimate taxable income in hands of contractor assessee and on the basis of the same, ITAT's conclusion as to 6% of Gross receipts can be taken/estimated as taxable income (approximately equal to 2% tax on gross receipts), has been upheld. However, Delhi High Court in Sobti 307 ITR 374, has concluded that even 8% rate given in section 44AD cannot be applied in case of contractor's not falling under section 44AD, as a matter of analogy. Conclusion similar to Delhi High Court (supra) is drawn by Raj HC in 177 Taxman 135.

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3.      BHC in Ronald Fernandes, in context of 60% waiver of pre-deposit of penalty amount by Tribunal (Foreign Exchange), on petitioner's challenge, taking cognizance of SC latest ruling in Vinod Solanki (no evidentiary value of retracted confessional statement), has directed complete waiver of Pre-deposit of Penalty (for hearing at Appellate Tribunal). This decision may be taken as a pointer to the proposition that where a matter is prima-facie covered in favor of an assessee by a Supreme Court ruling (eg Mainsh Maheshwari section 158BD/153C assessment etc.), complete stay of tax demand must be granted.

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4.      J&K High Court in H.P.Raina : In context of addition for unexplained expenditure in construction of building u/s 69C of the Act, J&K -HC has dismissed assessee's appeal against Amritsar ITAT order, thereby affirming/holding that: Since there was nothing to suggest receipt of loans and utilization thereof for construction, except assertions, non acceptance of such assertions, cannot be said to be based on suspicion, conjecture or surmise or by applying the rule of thumb.  No such procedure of hearing the assessee and giving him reasonable opportunity of being heard has been prescribed for making additions under Section 69C of the Act.

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5.      Delhi High Court/DHC in USHA India Ltd: Has dismissed revenue's appeal over an ITAT order, whereby it was concluded that if on an issue for an Asst Year, CIT-A allowed the assessee's appeal and revenue did not took the matter further (matter became final), revenue cannot be allowed to agitate the said issue, arising in said assessee's case, for other/subsequent years before ITAT. Also reference in this connection may be made recently inserted section 268A in the Income Tax Act, wherein it is stated that in case revenue did not prefer an appeal before an appellate authority in view of appeal filing instructions, with respect to an issue for an assessee concerned, same shall not preclude revenue from challenging the said issue in other years. Also reference may be made to ruling of SC larger Bench in J.K.Charitable Trust and C.K.Gangadharan.

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"Voice of CA" 

CA. Kapil Goel, Moderator-Direct Taxes, Mob: 9910272806, cakapilgoel@gmail.com

CA. Sidharth Jain, Co-Moderator, Mob: 9810418700, sidhjasso@yahoo.com

CA. Monika Aggarwal, Co-Moderator,  aca.monika@yahoo.in

CA. Mohit Bansal, Co-Moderator, Mob: 9810550050, mohitbansalca@gmail.com

Thanks for your valuable time

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