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 Intention of Assessee at the time of Purchase of Shares relevant to determine Tax Liability: ITAT

January, 23rd 2013

Sr       Appeal No.       Name of the        Bench              Points involved           To whom assigned     REMARKS
No                         Assessee

1.   ITA No.            M/s Kaira Can   S/Shri.          Reference dt. 25.11.2008 u/s Hon'ble Zonal          Adjourned Sine
     6987/Mum/2003      Company Ltd.    1. Sunil Kumar   255(4) of the Income Tax Vice-President             die
     ITA No. 5280 &                     Yadav, J.M.      Act made afresh by S/Shri.
     5281/Mum/2004                      2. V.K. Gupta,   Sunil Kumar Yadav, J.M.
     A.Y. 1996-97 to                    A.M.             and V.K. Gupta, A.M. is as
     1998-99                                             under.

                                                         "1. Whether the impugned
                                                         transactions of leasing out of
                                                         assets to the assessee is a
                                                         lease transaction      or a
                                                         financial lease?

                                                         2. Whether the assessee can
                                                         be held to be the owner of the
                                                         asset acquired under the
                                                         above transactions and is
                                                         entitled for depreciation over
                                                         the said assets or assessee
                                                         being a lessee is entitled to
                                                         claim the lease rent paid to
                                                         the lessor as a revenue

2.   ITA Nos. 525 to     Mrs. Sumanlata   S/Shri.             1. "Whether, non-issuance of Zonal Vice-   Fixed on
     530/Mum/2008,       Bansal, Mumbai   1. R.S. Padvekar,   the notice as provided in President(MZ)    04.02.2013
     A.Ys.1999-2000 to                    J.M.                Sub.-sec.(2) to Section 143 of
     2004-05                              2.B.Ramakotaiah,    the I.T. Act in the case of
                                          A.M.                assessment             framed
                                                              u/sec.153A, in consequence
                                                              of search under sec. 132, is
                                                              merely an irregularity and the
                                                              same is curable?"

                                                              2. "Whether ,on the facts of
                                                              the case, failure on the part of
                                                              the Assessessing Officer
                                                              (A.O.) to issue notice to the
                                                              assessee as per provisions of
                                                              Sub-sec.(2) to Section 143
                                                              shall have the effect of
                                                              rendering        the      entire
                                                              assessment framed u/sec.
                                                              153A of the Act as null and

3.   ITA 5229/M/2004     M/s. Standard    S/Shri.             "Whether on the facts and Shri.            After the
     & 5303/M/2004       Chartered Bank   1.R.S.Padvekar,     circumstances of the case R.S.Syal,A.M.    Disposal of MA
     A.Y. 1996-97                         J.M.                interest      income      of
                                          2.Rajendra Singh,   Rs.73,92,16,611/-       (Rs.
                                          A.M.                39,23,71,781               +
                                                              Rs.34,68,44,830) is asseable
                                                              to tax in the year under

1.   ITA             No. M/s Audyogik     S/Shri.             1. "In the facts and Zonal             Vice- Ajd. Sine-die
     1712/PN/2007,       Shikshan Mandal, 1. Mukul Shrawat,   circumstances of the case, President(MZ)
     for A.Y. 2004-05.   Pune,            J.M.                whether the property of the
                                          2.D. Karunakara     trust i.e. car, be held `made
                                          Rao, A.M.           available' for the use of the
                                                              trustee, specified person u/s
                                                              13(3) of the Income Tax Act

                                                              2. "In the facts and
                                                              circumstances of the case,
                                                              whether the expression `made
                                                              available for the use of'
                                                              trustee    ipso     facto    be
                                                              understood to have been
                                                              deemed used or applied for
                                                              the benefit of the said trustee,
                                                              with or without the actual use
                                                              or application of the property
                                                              of the trust i.e. car for
                                                              personal benefit of the trustee
                                                              in view of section 13(2) of the
                                                              Income Tax Act 1961?"
                                                              3.      "In the facts and
                                                              circumstances of the case,
                                                              whether the case of the
                                                              assessee falls within the ambit
                                                              of the provisions of clause (b)
                                                              of section 13(2) of the Income
                                                              tax Act 1961?"
                                                              4. "If the answers to above
                                                              questions at sr. No. (1) to (3)
                                                              are affirmative, whether the
                                                              denial of benefits of section
                                                              11 be restricted to such
                                                              income of the trust used or

                                                                 applied directly or indirectly
                                                                for the benefits of trustee or,
                                                                in alternative, the total
                                                                income of the trust is not
                                                                entitled for the benefits of
                                                                section 11 of the Act."

1.   ITA No.             Ms Rajya Krishi   S/Shri               1."Whether" the CIT(A) has      Hon'ble       Zonal Adjourned Sine
     141,142,143 &       Utpadan mandi     1. I.S.Verma,J.M.    jurisdiction to decide the      Vice-President (As die
     144/LKW/2009        Parishad,         2. N.K.Saini, A.M.   assessee's petition for stay or per           order
     C.O.No.06 to        Lucknow                                recovery of demand during       dt.20.09.2011    of
     09/LKW/2009                                                the pendency of assessee's      the        Hon'ble
     A.Y.2001-02,2002-                                          appeal      furnished    under  President)     Shri
     03,2003-                                                   section 246A of the Act?"       H.L.Karwa        as
     04 &2006-07                                                                                Zonal         Vice-
                                                                2. "If the CIT(A) has President to hear as
                                                                jurisdiction to decide the a Third Member."
                                                                assessee's petition for stay of
                                                                recovery of demend , than
                                                                under which provisions of
                                                                law the CIT(A) will pass such
                                                                an order i.e. what will be the
                                                                nature or status of such order
                                                                passed by the CIT(A)?"

                                                                3. "Whether, such order
                                                                (supra) passed by the CIT(A)
                                                                is appealable before the
                                                                Tribunal or not i.e. can such
                                                                an order be appealed against
                                                                before the Tribunal by way of
                                                                an appeal under section 253
                                                                of the Act, or can be
                                                                challenged only before the
                                                                Hon'ble High Court by way
                                                                of writ petition?"
                                                              4. "If such an order(Supra) is
                                                              found to be appealable before
                                                              the Tribunal, then can the
                                                              Tribunal entertain such an
                                                              appeal against such order
                                                              without there being appeal
                                                              before it against the order of
                                                              CIT(A) in appeal against the
                                                              order of the Assessing Officer
                                                              or other orders appealable
                                                              under section 246A of the
                                                              Act, as the case may be, for
                                                              the reason that the CIT(A) has
                                                              not preferred to decide the
                                                              assessee's appeal pending
                                                              before him?"
2.   ITA No.            M/s Zazsons      S/Shri.              "Whether, on the facts and Zonal Vice-              Adjourned Sine
     219/LKW/2009 and   Exports Ltd.     1. I.S.Verma, J.M.   the circumstances of the case President             die
     C.O.No.23/Lck/     Kanpur           2.N.K.Saini, A.M.    as well as in law, the
     2009 A.Y.2005-06                                         Revenue's ground Nos.3 to 6
                                                              be allowed or not?"
3.   SPNo.03/Lkw/2012   Smt.Uma Pandey, S/Shri.               SP No.03/Lkw/2012              Hon'ble President,   Hearing is
     (A/o ITA                           Sunil Kumar                                          I.T.A.T.             awaited.
     188/Lkw/2010)                      Yadav,J.M.            "Whether, the stay earlier
     A.Y. 2007-08                       2.B.R.Jain,A.M.       granted by the Tribunal can
     SP.No.04/Lkw/201   M/s.State Urban                       be extended till disposal of
     2                  Development                           the appeal in a case where the
     (A/o ITA           Agency.                               appeal has been heard by the
     103/Lkw/2012)                                            Tribunal and is pending with
     A.Y. 2007-08                                             the Members for order?"

                                                              "Whether, on the peculiar
                                                              facts, circumstances of this
                                                              case and in law, there is any
                                                              justification in extending the
                                                              stay of the disputed demand
                                                      that already had run beyond
                                                      365 days or the application so
                                                      made by the assessee is liable
                                                      to be rejected?"

                                                      SP No.04/Lkw/2012
                                                      "Whether, under the facts and
                                                      circumstances of the case,
                                                      the outstanding demand can
                                                      be stayed outrightly or subject
                                                      to payment of part of demand
                                                      in instalments as proposed?"
                                                             Sd/-                Sd/-
                                                            J.M.                A.M
4.   ITA No.        Smt. Uma Pandey S/Shri.           "Whether, under the facts and Shri.G.D.Agarwal,    Hearing is
     188/Lkw/2010                   1.Sunil Kumra     circumstances of the case, the Hon'ble Vice-      awaited.
     A.Y. 2007-08                   Yadav,J.M.        payments received by the President (LZ)
                                    2.B.R.Jain,A.M.   assessee from M/s. Amit Poly
                                                      Yarn Ltd. (now known as M/s
                                                      Amitech Ind. Ltd) are receipt
                                                      as an advance against sales
                                                      made during the course of
                                                      commercial transactions and
                                                      therefore      provisions    of
                                                      section 2(22)(e) of the
                                                      Income-tax Act, 1961 are not
                                                      attracted to these payments or
                                                      the aforesaid payments are
                                                      purely an advance/loan made
                                                      to the assessee, attracting the
                                                      provisions of section 2(22)(e)
                                                      of the Act?
                                                       "Whether, the issue of
                                                      allotment of shares for Rs.10
                                                      lakhs can be restored to the
                                                      Assessing        Officer     to
                                                          investigate the fact as to
                                                          whether the allotment of
                                                          shares was unilateral act of
                                                          the company i.e M/s. Amitech
                                                          Ind. Ltd. or the allotment was
                                                          done at the instance of the
                                                          assessee in order determine
                                                          the applicability of provisions
                                                          of section 2(22)(e) of the Act
                                                          to the benefit accrued to the
                                                          assessee on allotment of
                                                          shares or addition of Rs.10
                                                          lakhs can be confirmed by
                                                          holding that benefit accrued
                                                          to the assessee on allotment
                                                          of shares attracts provisions
                                                          of section 2(22)(e) of the Act
                                                          on the basis of material
                                                          available on record?"
                                                                Sd/-                Sd/-
                                                               J.M.                 A.M

1.   ITA No.         J.M.Agarwal       S/Shri.            1. "Whether, in the given Shri.G.D.Agarwal,    Fixed on
     92/Agr/2008 &   Tabacco Co. &     1.Hari Om          facts and circumstances of the Hon'ble Vice-   11/01/2013.
     93/Agr/2008     J.M.Agarwal       Maratha, J.M.      case when disturbed. The AO President (DZ)
     A.Y.1998-99     Tabacco Co. (P)   2. Sanjay Arora,   has not the Trading results
                     Ltd.              A.M.               and     the    assessee     has
                                                          explained               certain
                                                          incriminating       Evidences
                                                          found by the Central Excise
                                                          Department,        particularly
                                                          when the purchases and sales
                                                          are found fully vouched and
                                                          verifiable,     the      entire
                                                          Investment can be treated as
                                                          excess sale and be added to
                                                          the total income of the
                                                          assessee or not?"
                                                                2. "Whether, in a case of a
                                                                Company the 3 telephone
                                                                and car running expenses can
                                                                be disallowed and added in
                                                                the hands of the company on
                                                                account of personal user of
                                                                telephone/car by its director
                                                                (s) or not?
                                                                3. "Whether, when the
                                                                assessee's trading account has
                                                                been accepted in toto, and the
                                                                GRs were explained with
                                                                reference to books of
                                                                accounts, the non-production
                                                                of copies of GRs can lead to
                                                                addition, as has been done in
                                                                this case or not?"
1.   ITA No.            Shri. Anil          S/Shri              "Whether on the facts and the Hon'ble President,   ----
     327/Jab/2009       Jaiswal, Jabalpur   1.I.S.Verma, J.M.   circumstances of the case as I.T.A.T.
     A25/10-2004                            2.B.R.Kaushik,      well as in law, the CIT(A)
                                            A.M.                was justified in deleting the
                                                                addition made, while making
                                                                assessment under section
                                                                153A read with section
                                                                143(3) of the Act on
                                                                protective basis?"
     ITA Nos.          M/s Shyam Steel      S/Shri              "Whether in the facts and        Hon'ble Vice-
     65/Kol/2010, &    Industries Ltd.,     1.George Mathan,    circumstances of the case the    President
     655/Kol/2011.     Kolkata.             J.M.                power subsidy received by        Chennai/Kolkata
     A.Y.2006-07 2007-                      2.C.D.Rao, A.M.     the assessee is capital in       Zone.
     08                                                         nature or revenue in nature ?"

1    MA No.                Shri. Ghasi Ram   S/Shri.            "Whether, on the facts and in    Hon'ble Zonal      Pending for
     11 (Pat) / 2007       Agarwal, Ranchi   1. B. R. Mittal,   the circumstances of the case,   Vice President     hearing.
     arising out in                          J.M.               the application of the           (KZ)
     IT(SS)A No.                             2. B.K. Haldar,    department for recall of the
     45/Pat/05) A.Y. 86-                     A.M.               order of the Tribunal dt.
     87 to 97-98                                                21st June, 2006 passed in
                                                                IT(ss)A No. 91(Pat)/05 to
                                                                delete     the   amount     of
                                                                Rs.45,823/- is to be allowed
                                                                as held by the learned
                                                                Accountant Member or is to
                                                                be rejected as held by the
                                                                learned Judicial Member."
2   Int. Tax Appeal        M/s Coalsesce     S/Shri.            "Whether, in the facts and       Hon'ble Zonal      Pending for
    Nos. 06 to             Investment (P)    1. B. R. Mittal,   circumstances of the case, the   Vice-President     hearing.
    08/Pat/06              Ltd., Ranchi      J.M.               assessee was liable under the
    A.Ys.1997-98 to                          2. B.K. Haldar,    Interest Tax Act to pay
    1999-2000                                A.M.               interest tax on the gross
                                                                interest received on the loans
                                                                and advances granted by it
                                                                during       the    impugned
                                                                assessment years."
1   ITA 47, 48 and         M/s Purbanchal    S/Shri.            1.      "Whether, on the facts Hon'ble President,   Not yet fixed.
    49(Gau)/2004           Safety Glassess   1.Hemant           and circumstances of the case I.T.A.T.
    A.Y.1996-97, 1997-     (P) Ltd.,         Sausarkar, J.M.    the Ld. CIT(A) was justified
    98 &                   Guwahati.         2.B.R.Kaushik,     in deleting the additions made
    1998-99                                  A.M.               by the A.O. under section 69
                                                                of the Act as undisclosed
                                                                investment amounting to Rs.
                                                                9,21,461/-, Rs.2,20,990 and
                                                                Rs.3,66,526/-      for     the
                                                                assessment years 1996-97,
                                                                1997-98       and      1998-99
                                                                respectively on the ground
that the reassessments made
by the A.O. for the
assessment years in question
were     based      on     the
information received from
Bureau     of    Investigation
(Economic            Offence)
(Guwahati) and that the
information was based on
material and documentary
evidence to substantiate the

2.      "Whether on the facts
and in the circumstances of
the case the order of the
Ld.CIT(A) is required to be
set aside with the direction to
decide the issue afresh after
giving proper opportunity to
the assessee on the relevant
information received by the
A.O. on 25.02.2003 from the
Bureau     of     Investigation
(Economic Offence)?"

3. "Whether, on the facts
 and in the circumstances
 of the case, the Ld.
 Judicial Member was
 justified in holding that
 the issuance of notice u/s
 148 cannot hold good and,
 therefore, the assessment
 u/s 143(3) r.w.s. 147 of
 the     Act    is   illegal,
 unjustified and void or the
 Ld. Accountant Member
 was justified in holding
                                                         that the reopening of
                                                         assessment              and
                                                         subsequent      assessment
                                                         made by the A.O. is
                                                        As       per   the     order
                                                        dt.16.04.2008      of     the
                                                        Hon'ble President
                                                        "All the three questions
                                                        would be considered u/s
                                                        255(4) by the President."

2.   ITA Nos. 96, 97 &  Brooke Bond   S/Shri.           1." Whether, the learned Shri.Pramod      Adjourned Sine
     98(Gau)/2002       India Ltd.,   1.Hemant          CIT(A) has erred in law and Kumar, A.M.   -die
     A.Y.1990-91, 1991- Calcutta.     Sausarkar, J.M.   in facts in directing the A.O.
     92, 1992-93                      2.B.R.Kaushik,    to consider the income from
                                      A.M.              interest and dividend as
                                                        business income for the
                                                        purpose of eligible deduction
                                                        u/s 32AB of the Act, in view
                                                        of the decision in the case of
                                                        CIT Vs. Dinjoy Tea Estate
                                                        (P) Ltd. (1997) 224 ITR 263
                                                        (Gau), 271 ITR 123 (Cal),
                                                        273 ITR 470 (Mad) and 224
                                                        ITR 263 (Gau)?"
                                                        2. "Whether, this Bench of
                                                        the Tribunal working under
                                                        the jurisdiction of the Hon'ble
                                                        Guawahati High Court can
                                                        allow the claim of the
                                                        assessee that income from
                                                        interest and dividend is to be
                                                        taken as business income for
                                                        the purpose of eligible
                                                        deduction u/s 32 AB of the
                                                        Act in view of the decisions
                                                        in the cases of (i) Britania
                                                        Industries Ltd. Vs. JCIT
                                                           (2004) 271 ITR 123 (Cal)
                                                           and (ii) DCIT Vs.United
                                                           Nilgiris Tea Estate Co.
                                                           Ltd.(2005) 273 ITR 470
                                                           3. "Whether, on the facts and
                                                           circumstances of the case the
                                                           claim of expenditure of
                                                           Rs.94,363/- and Rs.1,26,718/-
                                                           attributable to the foreign tour
                                                           of Mrs. R. Sen, wife of the
                                                           director, Mr. D. Sen, was not
                                                           wholly and exclusively for
                                                           the purpose of business?"
                                                           4. "Whether, in view of
                                                           change of stand by the
                                                           assessee regarding nature and
                                                           purpose of expenditure taken
                                                           before the Ld.CIT(A) for the
                                                           first time the issue was
                                                           required to be restored to the
                                                           A.O. for fresh adjudication
                                                           after enquiring into the claim
                                                           of the assessee?"
3.   ITA No.         Shri. Shyam       S/Shri.             (1) "Whether, on the basis of Hon'ble President,   Not yet fixed.
     09/Gau/2006     Sunder Malpani,   Hemant Sausarkar,   facts and in the circumstances I.T.A.T.
     A.Y.2002-2003   Jorhat            J.M.                of the case, the assessee is
                                       B.R.Kaushik,        entitled to deduction u/s
                                       A.M.                80IB?"
                                                           (2) "Whether, in view of the
                                                           decision in the case of CIT Vs
                                                           Down Town Hospital Ltd.
                                                           251 ITR 683 (Gau), the issue
                                                           was required to be restored to
                                                           the learned CIT(A) for fresh
                                                           adjudication after ascertaining
                                                           whether all the conditions u/s
                                                           80 IB are fulfilled?"

4.   ITA 161/Gau/2003     M/s 3R,             S/Shri              1. "Whether in the facts and Shri. D.K.Tyagi,   Not yet fixed
     Block period f       Gauwahati.          1. Hement           circumstances of these cases J.M.
     1989-90 to 1998-99                       Sausarkar, J.M.     the block assessments can be
     & 1999-2000.                             2. B.R.Kaushik,     considered invalid?"
                                              A.M.                2. "Whether, in the facts and
     ITA 162/Gau/2004     M/s Panbazar                            circumstances of these cases
     Block period 1989-   Diagnostic                              it can be held that the A.O.
     90 to 1998-99 &      Centre, Guwahati.                       did not bring on record the
     1999-2000                                                    prima facie evidence for ------ do -------
                                                                  invoking jurisdiction and
                                                                  initiation of proceedings u/s
                                                                  158 BD of the Act?"

1.   MP.No                Shri Mahesh         S/Shri/Smt.          1."Whether, on the facts and Hon'ble    Vice- Fixed on
     41/Bang/2010         Hasmukh Boriya,     1.P.Madhavi Devi,   in the circumstances of the President (BZ)     01/02/2013
     (ITA 773/B/10)                           J.M.                case, there is any mistake
                                              2. A.Mohan          apparent       from      record
                                              Alankamony A.M.     rectifiable u/s 254(2) of the IT
                                                                  Act, when the Tribunal
                                                                  adjudicated the Revenue's
                                                                  appeal on the sole ground of
                                                                  limitation in favour of the
                                                                  Revenue, but not remitted
                                                                  back the issue to CIT(A) for
                                                                  adjudication on merits when
                                                                  such       an      issue      of
                                                                  remission/merits was not
                                                                  before the Tribunal either by
                                                                  a prayer submission or cross
                                                                  objection by the Assessee/AR
                                                                  other than the only argument
                                                                  to defend his ground on

                                                                  2."Whether, the inclusion of a
                                                                  copy   of     a    favourable
                                                                  judgment to the assessee on
                                                                 the issue of merits in the
                                                                 paperbook produced before
                                                                 the ITAT would amount to be
                                                                 a ground or submission
                                                                 enabling the assessee to
                                                                 invoke      the   rectification
                                                                 jurisdiction of the Tribunal,
                                                                 when during the course of the
                                                                 hearing there were no such
                                                                 arguments or submission on
                                                                 merits/remission before the
                                                                 Tribunal        by          the
1.   ITA No.            Shri . R.K.Garg     S/Shri .             Per J.M.                         Hon'ble Vice   Adjourned
     142/CHD/1999                           1.M.A.Bakshi, VP     1. "Whether, on the facts and President         sine-dia
     A.Y.97-98                              2. N.K.Saini. A.M.   in the circumstances of this (Chandigarh)
     ITA 550, 489, 586,                                          case,       the       guarantee
     587 & 588/CHD/99                                            commission received by the
     A.Y.87-88, 90-91,                                           assessees is a revenue receipt
     98-99, 1999-2000 &                                          or a capital receipt?"
     2000-2001                                                   2. "Whether, the decision of
                                                                 the Tribunal in assessee's
                                                                 own case for the assessment
                                                                 year 88-89 to the effect that
     ITA No.             Smt. Sunaina                            the guarantee commission is a
     143/CHD/1999        Garg                                    revenue         receipt       is
     A.Y.97-98                                                   inapplicable in view the
     ITA Nos. 589, 590                                           decision of the Hon'ble
     & 591/CHD/2002                                              Madras High Court in the
     A.Y. 1998-99,                                               case of CIT v. Pondicherry
     1999-2000,                                                  Industrial           Promotion
      2000-2001                                                  Development & Investment
                                                                 Corporation Ltd. (supra), and
     ITA 503/CHD/2002    Shri . R.K.Garg,                        the decision of Delhi High
     A.Y. 1997-98        & Sons(HUF)                             Court in the case of Suessen
                                                                 Textile Bearings Ltd. etc. v.
                                                                 Union of India etc. (supra)?"
3. "Whether, on the facts and
in the circumstances of the
case, the additional ground
raised by the revenue for the
assessment year 90-91 only
deserves to be admitted and
matter for all the assessment
years remitted to the CIT(A)
for giving an opportunity to
the AO to distinguish the two
High Courts cases, referred to
above notwithstanding the
fact that both the Members of
the Bench have decided the
issue relating to assessability
of the guarantee commission
on merits?"

Per A.M.
1. "Whether, on the facts and
in the circumstances of the
case, it could be held that the
guarantee          commission
received by the assessees
against their personal assets
was a capital receipt?"
2. "Whether, on the facts and
in the circumstances of the
case and also in law, the Ld.
CIT(A) should have provided
and opportunity of being
heard to the Assessing Officer
when there was a specific
direction by the Tribunal to
do so, before arriving at a
conclusion on the basis of
judgment of Hon'ble Delhi
High Court in the case of
                                                            Suessen Textile bearing Ltd.
                                                            and others V Union of India,
                                                            CC2 JJX 0082 and Hon'ble
                                                            Madras High Court in the
                                                            case of CIT V. Pondicherry
                                                            Indl Promotion Development
                                                            and Investment Corp. Ltd.
                                                            (2000) 245 ITR 859, that the
                                                            amount received by assessees
                                                            was a capital receipt."

1.   IT(SS)A No.       Sh.Vinod Goel       S/Shri            Shri H.S.Sidhu.                Zonal Vice    Pending for
     14/ASR/2005.                          1. H.S. Sidhu,   1.     "Whether, on the facts President(CZ)   fixation
                                           J.M.             and in the circumstances of
     IT(SS)A           M/s Sidhant         2.Mehar Singh,   present case, the issues in the
     No.13/ASR/2005.   Deposits &          A.M.             present appeals are covered
                       Advances(P) Ltd.                     by the decision of the Hon'ble
                                                            Supreme Court in the case of
     IT(SS)A           M/s Trimurti                         Manish Maheshwary Vs.
     No.12/ASR/2005    Deposits &                           ACIT (2007) 289 ITR 341
                       Advances (P) Ltd.                    (SC) and the decision of the
                                                            Hon'ble jurisdictional High
                                                            Court in Income tax Appeal
                                                            No.519 of 2009 decided on
                                                            20-7-2010 in the case of
                                                            CIT-I, Ludhiana Vs. Mridula
                                                            Prop.      Dhruv        fabics,
                                                            2.     "Whether, on the facts
                                                            and in the circumstances of
                                                            the present case, non-
                                                            production of records by the
                                                            revenue in spite of various
                                                            opportunities given to them,
                                                            benefit should go to the
                                                            revenue or the asessee?"
3.      "Whether, on the facts
and in the circumstances of
the present case, it is
mandatory a pre-requisite that
the satisfaction to be recorded
in the cases of persons
searched before issuance of
notice under section 158 BD
of the Income tax Act. 1961
to   the   assesse   i.e.   other

    Shri. Mehar Singh, AM.
1.              "Whether on the
facts and on law, valid Block
Assessments can be cancelled,
on the ground of assumed non-
production of record indicating
recording of satisfaction u/s
158BD, in a case where such
satisfaction is duly evidenced
by documents available in the
paper book filed by the Deptt.
and reproduced verbatim in the
order dated 06.12.2006 passed
by the Bench and subsequent
M.A.       dated     21.01.2009,
dismissed by the Bench,
without even considering such
2.      " Whether, on the facts
and      on      law     Block
Assessments can be cancelled
by applying the decision of
jurisdictional High Court,
relied upon by the assessee,
which lays down the law that
satisfaction under section
158BD be recorded before the
                                                          conclusion of the Block
                                                          Assessments under section
                                                          158BC of the Act, in the
                                                          absence of vital details of
                                                          dates of completion of such
                                                          block      assessment      being
                                                          determinative      factor,    in
                                                          determining the applicability
                                                          of the said decision, where
                                                          the parties to the disputes
                                                          failed to furnish such dates?"

1.   ITA No.        M/s. Mahaveer      S/Shri             Shri R.K. Gupta, JM.              Hon'ble Vice    Pending
     937/Jp/2011    Exports, Jaipur.   1.R.K.Gupta, JM.   1. "Whether, in the facts and President
                                       2.Sanjay Arora,    circumstance, the addition of (Chandigarh Zone)
                                       A.M.               Rs.3,58,455/- made by one of
                                                          the partners Smt. Kanta
                                                          Nowlkha is liable to be
                                                          deleted or to be confirmed?"
                                                          2. "Whether, in the facts and
                                                          circumstances, the addition of
                                                          Rs. 1,00,000/- each in the
                                                          name of Shri Nem Chand
                                                          Nowalkha and Shri Pankaj
                                                          Ghiya of the assessee firm
                                                          made as capital contribution
                                                          is liable to be deleted or liable
                                                          to be set aside to the file of
                                                          the Assessing Officer?"
                                                          3. "Whether, in view of the
                                                          decision        of      Hon'ble
                                                          Jurisdictional High Court in
                                                          case of Kewal Krishan &
                                                          Partners, 18 DTR 121 (Raj.)
                                                          the entire capital contribution
                                                          made/contributed prior to
                                                          commencencement                of
                                                          business in liable to be
deleted or to be confirmed in
part and partly to be set aside
to the file of Assessing
Officer ?"
Shri Sanjay Arora, AM.

1. "Whether, section 68 of the
Income-tax Act, 1961 can be
invoked where the assessee
fails to satisfactorily explain
the nature and source of a
case credit found recorded by
him in his books of account
for the relevant year, or is the
Revenue also required to
establish that the assessee had
in existence a source of
income before the date on
which such cash credit was
recorded, i.e., in order to treat
the same as unexplained u/s.

2. "Whether, the addition of
the impugned sums as
unexplained credits u/s.68 can
be deleted on the sole ground
that the assessee had no
source of income prior to the
date on which the same were
found recorded in the
assessee's books of account,
notwithstanding the fact that
it has completely failed to
discharge the burden of
satisfactorily explaining the
nature and source thereof?"

3. "Whether, the view that a
cash credit recorded in the
books of account of a
partnership firm ostensibly as
capital contributed by a
partner cannot be treated as
unexplained u/s.68 in the
hands of the firm even if the
assesseefirm       fails       to
satisfactorily explain the
nature and source thereof, and
more particularly if its fails to
adduce evidence to establish
that the alleged capital was
actually contributed by the
partner, is sustainable in law
in view of the decision by the
Hon'ble jurisdictional high
court in CIT v. Kishorilal
Santoshilal (1995)216 ITR 9

4.1 "Whether, can capital be
contributed by a partner to a
partnership-firm prior to the
coming into existence of the
said firm? In any case,
whether the claim of capital
contribution by way of
transfer of goods on June
1,2006 can be accepted in
view of the fact that the
assessee-firm itself came into
existence only on July
"Is the remand in the case of
two cash credits of Rs. 1 lac
each in the name of two
partners justified under the
                                                            facts and circumstances of the
                                                            case, even as contemplated by
                                                            the Hon,ble jurisdictional
                                                            high court in the case of
                                                            Rajshree Synthetics (P) Ltd.
                                                            v. CIT (2002) 256 ITR 331
2.   ITA No.363 &      M/s Escorts Heart S/Shri             Shri R.K.Gupta,J.M.            Hon'ble Vice       Pending
     326/Jp/2011       Institute &       1. R.K. Gupta,     1.    Whether in the facts and President (Delhi
     A.Y.2008-09.      Research Centre,     JM.             circumstances of the case, the Zone)
                       Jaipur.           2. Sanjay Arora,   provisions of section 194J are
     ITA               Escort Heart         AM.             applicable on the payments
     No.1123/Jp/2011   Super Speciality                     made to blood bank ?"
     A.Y.2009-10.      Hospital Ltd.,
                       Jaipur.                              2.       Whether in the facts
                                                            and circumstances of the case,
                                                            the provisions of section 192
                                                            or section 194J are applicable
                                                            in case of retainer doctors ?

                                                            3.        Whether in the facts
                                                            and circumstances of the case,
                                                            on the mark up/profits earned
                                                            by Fortis Health World Ltd.
                                                            (FHWL) on sale of medicines
                                                            to the assessee is a
                                                            commission chargeable to tax
                                                            under section 194H or is a
                                                            sale on which provisions of
                                                            section194H       are      not
                                                            4.        Whether in the facts
                                                            and circumstances of the case,
                                                            on the mark up/profits the
                                                            provisions of section 194C
                                                            can be invoked by the
                                                            Tribunal where neither this is
                                                            a case of department nor of
                                                            the assessee ?
     Shri Sanjay Arora, AM.
1.1 Whether the payments to
the blood banks for carrying
out investigation procedures,
are, in the facts and
circumstances of the case,
made by the assessee-hospital
or by its patients?
1.2 Whether, while deciding
an issue under appeal, the
tribunal required to apply its
independent mind thereon,
without being influenced by
the decision by the first
appellate authority for a
subsequent year, particularly
when the same was not
pressed during hearing and,
accordingly, the parties not
heard thereon?
2.     I am in agreement with
the Question No. 2 as
proposed by my ld. Brother,
3.1       Whether, can on the
admitted set of facts brought
on record by the parties, the
inferential finding/s by the
Appellate Tribunal differ
from that of either party
before it, or is it to necessarily
match therewith? Further, is
not the tribunal duty bound
to, in deciding an issue before
it, apply the law as applicable
to the facts found by it,
including such inferential

                                                           3.2      Whether, in the facts
                                                           and circumstances of the case,
                                                           the supply of medicines by
                                                           Fortis       Health       World
                                                           Ltd.(FHWL) to the assessee-
                                                           company       for    its     IPD
                                                           Pharmacy, constitutes an
                                                           independent business being
                                                           carried on by FHWL, or is
                                                           the said supply only the result
                                                           of the work carried out by its
                                                           relevant manpower, whose
                                                           services      stand      already
                                                           contracted to the assessee
                                                           company and subject to tax
                                                           deduction u/s. 194C of the Act?
3.   ITA No.           Smt. Asha         S/Shri            Whether in the facts and Shri G.D. Agarwal,   Pending
     110/JP/2012       Mandowra,         1.R.K.Gupra,      circumstances of the present Vice-President
                       Jaipur.             JM.             case, the order of Ld. CIT(A) (DZ)
                                         2.Sanjai Arora,   is liable to be confirmed or
                                           AM.             liable to be restored to his file
                                                           to pass a fresh order ?

4.   MA. No.           Shri Deepak       S/Shri            Whether in the facts and Shri G.D. Agarwal,   Pending
     11/JP/2011        Delela, Jaipur.   1.R.K.Gupta,      circumstances of the present Vice-President
     (A.O.of ITA No.                       JM.             case, the order of Tribunal in (DZ)
     13/JP/10)                           2.Sanjai Arora,   Misc.              Application
                                           AM.             No.11/JP/2011 arising out of
                                                           the order of the Tribunal in
                                                           ITA No.13/JP/2010 relating
                                                           to Assessment Year 2006-07
                                                           is liable to be allowed by
                                                           recalling the order of the
                                                           Tribunal or to be dismissed.?

1.   ITA No.362(JU)/10   Smt. Supriya       S/Shri               "Whether, on the facts and Hon'ble      Vice- Adjourned
                         Kanwar, Jodhpur.   1. Joginder Singh,   circumstances of the case, President (Mumbai sine-dia
                                               J.M.              solitary     transaction     of Zone)
                                            2. K.G.Bansal,       purchase and sale of the same
                                               A.M.              agricultural     land      with
                                                                 standing      crops    situated
                                                                 beyond       the     prescribed
                                                                 municipal limits, amounts to
                                                                 adventure in the nature of
                                                                               (Joginder Singh)

                                                                 "Whether, on the facts and in
                                                                 the circumstances of the case
                                                                 and sale of five pieces of
                                                                 agricultural     land      with
                                                                 standing crop, by way of
                                                                 separate conveyance deeds,
                                                                 beyond        the prescribed
                                                                 distance from any municipal
                                                                 council,       amount        to
                                                                 transactions     on     capital
                                                                 account or adventure in the
                                                                 nature of trade?"

1.   ITA               Atul Auto Ltd.   S/Shri              "Whether on the facts and Hon'ble         Vice
     No.921/Rjt/2010   Rajkot.          1.T.K.Sharma,       circumstances of the case, the President,
                                        J.M.                ld.CIT(A) is justified in (Ahmedabad Zone)
                                        2.D.K.Srivastava,   directing the AO to grant the
                                        A.M.                exemption of Rs.22,96,155/-
                                                            u/s.10(34) of the I.T.Act,
                                                            1961 in respect of dividend
                                                            received by the assessee in
                                                            respect of shares held in
                                                            subsidiary    company     and
                                                            reflected in the balance-sheet
                                                            under the head investments.
                                                            "whether            unreported
                                                            judgment, which was never
                                                            cited by the parties not
                                                            otherwise brought to the
                                                            notice of the Bench not to the
                                                            notice of the Member
                                                            proposing the order, can be
                                                            used by another Member for
                                                            passing dissenting order
                                                            without       giving      any
                                                            opportunity in this behalf to
                                                            the parties?


                            LIST OF THIRD MEMBER CASES HEARD AND PENDING FOR ORDERS AS ON 06.01.2013.

Sr.   Appeal No.            Name of the         Bench                   Points involved                              To Whom           Remarks
No                          Assessee                                                                                 assigned
1.    ITA No. 25/Gau/2005   M/s Baid            S/Shri.                 "Whether, on the facts and in the Shri. Pramod                 Heard on
      A.Y.1996-97           Commercial          1.Hemant Sausarkar,     circumstances of the case the transport Kumar, A.M.            04.04.2012
                            Enterprises Ltd.,   J.M.                    subsidy is to be treated as capital in nature in
                            Guwahati.           2.B.R.Kaushik, A.M.     view of decisions in the following cases-
                                                                                                                                       Heard on
2.    ITA No. 20/Gau/2005   M/s Shiva Sakti                             i) CIT Vs Assam Asbestos Ltd. 215 ITR 847                      04.04.2012
      A.Y.2001-2002         Floor Mills (P)                             (Gau)
                            Ltd., Tinsukia                              ii) Sahney Steel & Press Works Ltd. And
      C.O.No.02/Gau/2005                                                Others Vs CIT 228 ITR 253 (SC)
                                                                        iii) DCIT Vs Assam Asbestos Ltd. (2003)
                            M/s Virgo                                   263 ITR 357 (Gau)                                              Heard on
3.    ITA No.165/Gau/2004   Cements Ltd.,                               iv) CIT Vs Rajaram Maize Products Ltd. 251                     03.04.2012
      A.Y.2001-2002         Gauwahati.                                  ITR 427(SC) and
                                                                        v) Sdarda Plywood Industries Ltd. Vs.CIT
                                                                        238 ITR 354(Cal).

1.    ITA 2004/Kol/09,      M/s. UAL            S/Shri                Whether or not in the facts and                Dr. O.K.           Heard on
      1668, 1669/Kol/2011   Industries Ltd.,    1.Pramod Kumar, A.M. circumstances of the case `Fly Ash Handling     Narayanan,        17.12.2012
                            Kolkata             2.George Mathan, J.M. System' is eligible to be treated as `Air      Zonal Vice
                                                                      Pollution Control Equipment' for the purpose   President
                                                                      of granting depreciation at 100%?"

1.   ITA 720/Coch/2010   Al-Ameen            S/Shri.                 "Whether levy of penalty under section Hon'ble Vice                    Heard on
     A.Y.2005-06 &       Educational Trust   1.N.Vijaykumaran,       271D is justified?"                              President(BZ).        14.12.2012
     ITA 721/Coch/2010                       J.M.                                    Sd/-
     A.Y.2006-07                             2.Sanjay Arora, A.M.                   J.M.
                                                                     1"Whether, on facts, and in the
                                                                     circumstances of the case, penalty u/s.271D
                                                                     to the extent of Rs.79.40 lacs and Rs.15.25
                                                                     lacs for the two consecutive years, is liable to
                                                                     be levied, or not?

                                                                     2."Whether, on facts and in the
                                                                     circumstances of the case, penalty levied
                                                                     u/s.271D to the extent of Rs.49.40 lacs (for
                                                                     A.Y. 2005-06), is liable to be deleted, or
                                                                     restored back to the file of the assessing
                                                                     authority for the necessary factual
                                                                     determi-nation, where upon only the law can
                                                                     be applied?


1.   ITA 210/Kol/2008    M/s. Shaw           S/Shri.                 "Whether, on the facts and in the Hon'ble Vice-                        Heard on
     A.Y.2004-05         Wallace Financial   1.R.K.Gupta,J.M.        circumstances of the case, the assessment in President, (MZ)           08.01.2013
                         Services Ltd.       2.Rajendra Singh,A.M.   the case of assessee for A.Y. 2004-05 can be
                                                                     said to have been made on a non existent
                                                                     company and if so, whether the same can be

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