INCOME-TAX APPELLATE TRIBUNAL, MUMBAI BENCHES ... - ITAT

INCOME-TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAISTATEMENT SHOWING THE LIST OF THIRD MEMBER CASES PENDING AS ON 06.06.2012SrNoAppeal No.Name of theAssesseeBench Points involved To whom assigned REMARKSMUMBAI BENCH1. ITA No.6987/Mum/2003ITA No. 5280 &5281/Mum/2004A.Y. 1996-97 to 1998-99M/s Kaira CanCompany Ltd.S/Shri.1. Sunil KumarYadav, J.M.2. V.K.Gupta, A.M.Reference dt. 25.11.2008 u/s255(4) of the Income Tax Actmade afresh by S/Shri. SunilKumar Yadav, J.M. and V.K.Gupta, A.M. is as under.Hon’ble Zonal Vice-PresidentFixed23.07.2012on“1. Whether the impugnedtransactions of leasing out ofassets to the assessee is a leasetransaction or a financial lease?2. Whether the assessee can beheld to be the owner of the assetacquired under the abovetransactions and is entitled fordepreciation over the said assetsor assessee being a lessee isentitled to claim the lease rent1

paid to the lessor as a revenueexpenditure?”2. ITA Nos. 525 to530/Mum/2008,A.Ys.1999-2000 to2004-05Mrs. SumanlataBansal, MumbaiS/Shri.1. R.S.Padvekar, J.M.2.B.Ramakotaiah,A.M.1. “Whether, non-issuance of thenotice as provided in Sub.-sec.(2)to Section 143 of the I.T. Act inthe case of assessment framedu/sec.153A, in consequence ofsearch under sec. 132, is merelyan irregularity and the same iscurable?”Zonal Vice-President(MZ)Fixed on09.07.20122. “Whether ,on the facts of thecase, failure on the part of theAssessessing Officer (A.O.) toissue notice to the assessee as perprovisions of Sub-sec.(2) toSection 143 shall have the effectof rendering the entire assessmentframed u/sec. 153A of the Act asnull and void?”3. ITA 5229/M/2004 &5303/M/2004A.Y. 1996-97M/s. StandardChartered BankS/Shri.1.R.S.Padvekar,J.M.2.RajendraSingh,A.M.“Whether on the facts andcircumstances of the case interestincome of Rs.73,92,16,611/- (Rs.39,23,71,781 + Rs.34,68,44,830)is asseable to tax in the year underconsideration?”Shri. R.S.Syal,A.M.After theDisposal of MA2

4. ITA 210/Kol/2008A.Y.2004-05PUNE BENCHM/s. Shaw WallaceFinancial ServicesLtd.S/Shri.1.R.K.Gupta,J.M.2.RajendraSingh,A.M.“Whether, on the facts and in thecircumstances of the case, theassessment in the case of assesseefor A.Y. 2004-05 can be said tohave been made on a non existentcompany and if so, whether thesame can be quashed?”Hon’ble Vice-President, (MZ)Fixed on25.06.20121. ITA No.1712/PN/2007,for A.Y. 2004-05.M/s AudyogikShikshan Mandal,Pune,S/Shri.1. Mukul Shrawat,J.M.2.D. Karunakara Rao,A.M.1. “In the facts and circumstancesof the case, whether the propertyof the trust i.e. car, be held ‘madeavailable’ for the use of thetrustee, specified person u/s 13(3)of the Income Tax Act 1961?”Zonal Vice-President(MZ)Fixed on27.07.2012.2. “In the facts and circumstancesof the case, whether theexpression ‘made available for theuse of’ trustee ipso facto beunderstood to have been deemedused or applied for the benefit ofthe said trustee, with or withoutthe actual use or application of theproperty of the trust i.e. car forpersonal benefit of the trustee inview of section 13(2) of theIncome Tax Act 1961?”3. “In the facts and circumstancesof the case, whether the case ofthe assessee falls within the ambitof the provisions of clause (b) of3

section 13(2) of the Income taxAct 1961?”4. “If the answers to abovequestions at sr. No. (1) to (3) areaffirmative, whether the denial ofbenefits of section 11 be restrictedto such income of the trust used orapplied directly or indirectly forthe benefits of trustee or, inalternative, the total income of thetrust is not entitled for the benefitsof section 11 of the Act.”DELHI BENCH1. ITA No.1868/Del/2011Bhagwati PrasadMaheswariS/Shri.1.I.P.Bansal,J.M.2.B.K.Haldar, A.M.“Whether, on facts andcircumstances of the case and inlaw the impugned issue should berestored back to the AssessingOfficer with a direction that boththe assessee and Assessing Officershould comply with the directionsgiven in the earlier order of theTribunal dated 8 th June,2007 orthe same be decided against theappellant.”Hon’blePresident,I.T.A.T.Fixed on20.07.20124

LUCKNOW BENCH1. ITA No. 141,142,143& 144/LKW/2009C.O.No.06 to09/LKW/2009A.Y.2001-02,2002-03,2003-04 &2006-07Ms Rajya KrishiUtpadan mandiParishad, LucknowS/Shri1. I.S.Verma,J.M.2. N.K.Saini, A.M.1.”Whether” the CIT(A) hasjurisdiction to decide theassessee’s petition for stay orrecovery of demand during thependency of assessee’s appealfurnished under section 246A ofthe Act?”2. “If the CIT(A) has jurisdictionto decide the assessee’s petitionfor stay of recovery of demend ,than under which provisions oflaw the CIT(A) will pass such anorder i.e. what will be the natureor status of such order passed bythe CIT(A)?”Hon’ble Zonal Vice-President (As perorder dt.20.09.2011 ofthe Hon’blePresident) ShriH.L.Karwa as ZonalVice-President to hearas a Third Member.”Adj Sine die3. “Whether, such order (supra)passed by the CIT(A) isappealable before the Tribunal ornot i.e. can such an order beappealed against before theTribunal by way of an appealunder section 253 of the Act, orcan be challenged only before theHon’ble High Court by way ofwrit petition?”4. “If such an order(Supra) isfound to be appealable before theTribunal, then can the Tribunal5

entertain such an appeal againstsuch order without there beingappeal before it against the orderof CIT(A) in appeal against theorder of the Assessing Officer orother orders appealable undersection 246A of the Act, as thecase may be, for the reason thatthe CIT(A) has not preferred todecide the assessee’s appealpending before him?”2. ITA No.219/LKW/2009 andC.O.No.23/Lck/ 2009A.Y.2005-063. ITA 318/Luck/2011A.Y.2001-02M/s ZazsonsExports Ltd.KanpurLate Jain NarainUpadhyayS/Shri.1. I.S.Verma, J.M.2.N.K.Saini, A.M.S/Shri.1.Sunil KumarYadav,J.M.2.B.R.Jain,A.M.“Whether, on the facts and thecircumstances of the case as wellas in law, the Revenue’s groundNos.3 to 6 be allowed or not?”“Whether under the facts andcircumstances of the present case,penalty under section 271 (1) ( C )of the Income-tax Act, 1961 issustainable in the eyes of law?”Zonal Vice-PresidentHon’ble Vice-President (LZ)Adjourned SinedieTo be fixed4. SP No.03/Lkw/2012(A/o ITA188/Lkw/2010)A.Y. 2007-08SP.No.04/Lkw/2012(A/o ITA103/Lkw/2012)A.Y. 2007-08Smt.Uma Pandey,M/s.State UrbanDevelopmentAgency.S/Shri.Sunil KumarYadav,J.M.2.B.R.Jain,A.M.SP No.03/Lkw/2012“Whether, the stay earlier grantedby the Tribunal can be extendedtill disposal of the appeal in a casewhere the appeal has been heardby the Tribunal and is pendingwith the Members for order?”Hon’blePresident,I.T.A.T.To be fixedSd/-J.M.6

“Whether, on the peculiar facts,circumstances of this case and inlaw, there is any justification inextending the stay of the disputeddemand that already had runbeyond 365 days or theapplication so made by theassessee is liable to be rejected?”Sd/-A.M.SP No.04/Lkw/2012“Whether, under the facts andcircumstances of the case, theoutstanding demand can be stayedoutrightly or subject to paymentof part of demand in instalmentsas proposed?”Sd/- Sd/-J.M. A.M5. ITA No. 188/Lkw/2010A.Y. 2007-08Smt. Uma PandeyS/Shri.1.Sunil KumraYadav,J.M.2.B.R.Jain,A.M.“Whether, under the facts andcircumstances of the case, thepayments received by the assesseefrom M/s. Amit Poly Yarn Ltd.(now known as M/s Amitech Ind.Ltd) are receipt as an advanceagainst sales made during thecourse of commercial transactionsand therefore provisions of sectionShri.G.D.Agarwal,Hon’ble Vice-President (LZ)To be fixed7

2(22)(e) of the Income-tax Act,1961 are not attracted to thesepayments or the aforesaidpayments are purely anadvance/loan made to theassessee, attracting the provisionsof section 2(22)(e) of the Act?“Whether, the issue of allotmentof shares for Rs.10 lakhs can berestored to the Assessing Officerto investigate the fact as towhether the allotment of shareswas unilateral act of the companyi.e M/s. Amitech Ind. Ltd. or theallotment was done at the instanceof the assessee in order determinethe applicability of provisions ofsection 2(22)(e) of the Act to thebenefit accrued to the assessee onallotment of shares or addition ofRs.10 lakhs can be confirmed byholding that benefit accrued to theassessee on allotment of sharesattracts provisions of section2(22)(e) of the Act on the basis ofmaterial available on record?”Sd/- Sd/-J.M. A.M8

AGRA BENCH1. ITA No.92/Agr/2008 &93/Agr/2008A.Y.1998-99J.M.AgarwalTabacco Co. &J.M.AgarwalTabacco Co. (P)Ltd.S/Shri.1.Hari Om Maratha,J.M.2. Sanjay Arora,A.M.1. “Whether, in the given factsand circumstances of the casewhen disturbed. The AO has notthe Trading results and theassessee has explained certainincriminating Evidences found bythe Central Excise Department,particularly when the purchasesand sales are found fully vouchedand verifiable, the entireInvestment can be treated asexcess sale and be added to thetotal income of the assessee ornot?”Shri.G.D.Agarwal,Hon’ble Vice-President (DZ)Adjourned Sine- die2. “Whether, in a case of aCompany the 3 telephone and carrunning expenses can bedisallowed and added in the handsof the company on account ofpersonal user of telephone/car byits director (s) or not?”3. “Whether, when the assessee’strading account has been acceptedin toto, and the GRs wereexplained with reference to booksof accounts, the non-production ofcopies of GRs can lead toaddition, as has been done in thiscase or not?”9

JABALPUR BENCH1. ITA No.327/Jab/2009A25/10-2004Shri. Anil Jaiswal,JabalpurS/Shri1.I.S.Verma, J.M.2.B.R.Kaushik, A.M.“Whether on the facts and thecircumstances of the case as wellas in law, the CIT(A) was justifiedin deleting the addition made,while making assessment undersection 153A read with section143(3) of the Act on protectivebasis?”Hon’ble President,I.T.A.T.----PATNA BENCH(Circuit Bench, Ranchi)1 MA No.11 (Pat) / 2007 arisingout inIT(SS)A No.45/Pat/05) A.Y. 86-87to 97-98Shri. Ghasi RamAgarwal, RanchiS/Shri.1. B. R. Mittal, J.M.2. B.K. Haldar, A.M.“Whether, on the facts and in thecircumstances of the case, theapplication of the department forrecall of the order of theTribunal dt. 21 st June, 2006passed in IT(ss)A No. 91(Pat)/05to delete the amount ofRs.45,823/- is to be allowed asheld by the learned AccountantMember or is to be rejected asheld by the learned JudicialMember.”Hon’ble Zonal VicePresident (KZ)Pending forhearing.2 Int. Tax AppealNos. 06 to 08/Pat/06A.Ys.1997-98 to 1999-2000M/s CoalsesceInvestment (P) Ltd.,RanchiS/Shri.1. B. R. Mittal, J.M.2. B.K. Haldar, A.M.“Whether, in the facts andcircumstances of the case, theassessee was liable under theInterest Tax Act to pay interest taxon the gross interest received onthe loans and advances granted byit during the impugned assessmentHon’ble Zonal Vice-PresidentPending forhearing.10

GUWAHATIBENCHES1 ITA 47, 48 and49(Gau)/2004A.Y.1996-97, 1997-98&1998-99M/s PurbanchalSafety Glassess (P)Ltd., Guwahati.S/Shri.1.Hemant Sausarkar,J.M.2.B.R.Kaushik, A.M.years.”1. “Whether, on the facts andcircumstances of the case the Ld.CIT(A) was justified in deletingthe additions made by the A.O.under section 69 of the Act asundisclosed investment amountingto Rs. 9,21,461/-, Rs.2,20,990 andRs.3,66,526/- for the assessmentyears 1996-97, 1997-98 and 1998-99 respectively on the ground thatthe reassessments made by theA.O. for the assessment years inquestion were based on theinformation received from Bureauof Investigation (EconomicOffence) (Guwahati) and that theinformation was based on materialand documentary evidence tosubstantiate the assessments?”Hon’ble President,I.T.A.T.Not yet fixed.2. ”Whether on the facts and inthe circumstances of the case theorder of the Ld.CIT(A) is requiredto be set aside with the directionto decide the issue afresh aftergiving proper opportunity to theassessee on the relevantinformation received by the A.O.on 25.02.2003 from the Bureau ofInvestigation (Economic11

Offence)?”3. “Whether, on the facts and inthe circumstances of the case,the Ld. Judicial Member wasjustified in holding that theissuance of notice u/s 148cannot hold good and,therefore, the assessment u/s143(3) r.w.s. 147 of the Act isillegal, unjustified and void orthe Ld. Accountant Memberwas justified in holding thatthe reopening of assessmentand subsequent assessmentmade by the A.O. is justified?”2. ITA Nos. 96, 97 &98(Gau)/2002A.Y.1990-91, 1991-92,1992-93Brooke Bond IndiaLtd., Calcutta.S/Shri.1.Hemant Sausarkar,J.M.2.B.R.Kaushik, A.M.As per the order dt.16.04.2008of the Hon’ble President“All the three questions would beconsidered u/s 255(4) by thePresident.”1.” Whether, the learned CIT(A)has erred in law and in facts indirecting the A.O. to consider theincome from interest and dividendas business income for thepurpose of eligible deduction u/s32AB of the Act, in view of thedecision 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 224Shri.PramodKumar,A.M.Adj. Sine -die12

ITR 263 (Gau)?”2. “Whether, this Bench of theTribunal working under thejurisdiction of the Hon’bleGuawahati High Court can allowthe claim of the assessee thatincome from interest and dividendis to be taken as business incomefor the purpose of eligiblededuction u/s 32 AB of the Act inview of the decisions in the casesof (i) Britania Industries Ltd. Vs.JCIT (2004) 271 ITR 123 (Cal)and (ii) DCIT Vs.United NilgirisTea Estate Co. Ltd.(2005) 273ITR 470 (Mad)?”3. “Whether, on the facts andcircumstances of the case theclaim of expenditure ofRs.94,363/- and Rs.1,26,718/-attributable to the foreign tour ofMrs. R. Sen, wife of the director,Mr. D. Sen, was not wholly andexclusively for the purpose ofbusiness?”4. “Whether, in view of change ofstand by the assessee regardingnature and purpose of expenditure13

taken before the Ld.CIT(A) forthe first time the issue wasrequired to be restored to the A.O.for fresh adjudication afterenquiring into the claim of theassessee?”4. ITA No. 09/Gau/2006A.Y.2002-2003Shri. Shyam SunderMalpani, JorhatS/Shri.Hemant Sausarkar,J.M.B.R.Kaushik, A.M.(1) “Whether, on the basis offacts and in the circumstances ofthe case, the assessee is entitled todeduction u/s 80IB?”Hon’ble President,I.T.A.T.Not yet fixed.(2) “Whether, in view of thedecision in the case of CIT VsDown Town Hospital Ltd. 251ITR 683 (Gau), the issue wasrequired to be restored to thelearned CIT(A) for freshadjudication after ascertainingwhether all the conditions u/s 80IB are fulfilled?”5. ITA No.161/Gau/2003Block period f 1989-90to 1998-99 & 1999-2000.ITA No.162/Gau/2004Block period 1989-90to 1998-99 & 1999-2000M/s 3R, Gauwahati.M/s PanbazarDiagnostic Centre,Guwahati.S/Shri1. Hement Sausarkar,J.M.2. B.R.Kaushik, A.M.1. “Whether in the facts andcircumstances of these cases theblock assessments can beconsidered invalid?”2. “Whether, in the facts andcircumstances of these cases it canbe held that the A.O. did not bringShri. D.K.Tyagi,J.M.------ do -------Not yet fixedNot yet fixed14

on record the prima facie evidencefor invoking jurisdiction andinitiation of proceedings u/s 158BD of the Act?”CHENNAI BENCH1. ITA 493/Chenn/2010A.Y.2004-05ITA 494/Chenn/2010A.Y.2005-06ITA 495/Chenn/2010A.Y.2006-07Dr. K. SenthilnathaS/Shri.1.Hari OmMaratha,J.M.2.N.S.Saini,A.M.1.“Whether the payment ofRs.18,41,787/- made to CMDAunder the provisions of Section133-A of the Tamil Nadu Townand Country Planning Act, 1971(as amended vide amending Acts31 of 2000, 17 of 2001 and 7 of2002), which was not refundableto the assessee forms part of thecost of hospital building to theassessee or not under section 43(1) of the Act?”2.”Whether, the assessee wasentitled to depreciation undersection 32 of the Act in respect ofthe entire cost of hospital buildingincluding the payment made toCMDA, which was used by it forits business purpose or not?”Shri. O.K.Narayanan,Hon’ble Vice-President, (CZ)To be fixed15

BANGALOREBENCH1. MP.No 41/Bang/2010(ITA 773/B/10)Shri MaheshHasmukh Boriya,S/Shri/Smt.1.P.Madhavi Devi,J.M.2. A.MohanAlankamony A.M.1.”Whether, on the facts and inthe circumstances of the case,there is any mistake apparent fromrecord rectifiable u/s 254(2) ofthe IT Act, when the Tribunaladjudicated the Revenue’s appealon the sole ground of limitation infavour of the Revenue, but notremitted back the issue to CIT(A)for adjudication on merits whensuch an issue of remission/meritswas not before the Tribunal eitherby a prayer submission or crossobjection by the Assessee/ARother than the only argument todefend his ground ontechnicality?”Hon’blePresident (BZ)Vice-Fixed on22.06.20122.”Whether, the inclusion of acopy of a favourable judgement tothe assessee on the issue of meritsin the paperbook produced beforethe ITAT would amount to be aground or submission enabling theassessee to invoke the rectificationjurisdiction of the Tribunal, whenduring the course of the hearingthere were no such arguments orsubmission on merits/remissionbefore the Tribunal by theAssessee/AR?”16

COCHIN BENCH1. ITANo.1004/Coch/2008A.Y. 2005-06P.K.KannanS/Shri.1.N.Vijaykumaran,J.M.2.Sanjay Arora,A.M.“Whether, the provisio canoverride the main Section inrespect of Section 40(a) as per theamendment by the Finance Act,2004 & 2007 with respect toSection 194C with effect from01.04.05 to 01.06.07respectively.”Shri N.V.Vasudevan,JM.Adj. Sine -dieSd/-A.M.1. “Whether, the provision of sec.194C(2) of the Act is applicable tothe assessee contractor for therelevant year; the satisfaction ofthe financial criteria specified inthe provision being an undisputedfact?”2. “If so, whether, therefore, theAO is right in invoking theprovision of sec.40(a)(ia) of theAct qua the assessee’s admittedfailure to deduct tax at source u/s.194C( a ) in respect of thecredits/payments to the individualand HUF sub-contractors?”3. “Whether, the binding decisionsby the hon’ble jurisdictional highcourt inter alia in the case of CIT17

vs. South India Corpoaration Ltd.242 ITR 114 (Ker.) and CIT vs.Aspinwall & Co. Ltd., 98 ITR 291(Ker.) have a direct and clearbearing on the issue/s arising foradjudication in the instantappeal?”2. ITA 720/Coch/2010A.Y.2005-06 &ITA 721/Coch/2010A.Y.2006-07Al-AmeenEducational TrustS/Shri.1.N.Vijaykumaran,J.M.2.Sanjay Arora,A.M.Sd/-A.M.“Whether levy of penalty undersection 271D is justified?”Sd/-J.M.1”Whether, on facts, and in thecircumstances of the case, penaltyu/s.271D to the extent of Rs.79.40lacs and Rs.15.25 lacs for the twoconsecutive years, is liable to belevied, or not?2.”Whether, on facts and in thecircumstances of the case, penaltylevied u/s.271D to the extent ofRs.49.40 lacs (for A.Y. 2005-06),is liable to be deleted, or restoredback to the file of the assessingauthority for the necessary factualdetermination, whereupon onlythe law can be applied?”Hon’blePresident,I.T.A.T.Yet to be fixed.Sd/-A.M.18

AHMEDABADBENCH1. ITA 2984/Ahd/2008 &C.O. 223/Ahd/2008A.Y.2000-01Sardar VallabhaiEducation SocietyIsroll, SuratS/Shri.1.MukulShrawat,J.M.2.A.K.Garodia,A.M.1.“Whether under the facts andcircumstances of the case, thematter is required to be restoredback to the file of LearnedCIT(A) for a fresh decision asproposed by the A.M. or thetribunal can decide the matter asper the proposed order of theJ.M.”Hon’ble Vice-President (AZ)Adjourned Sinedie2. “Whether under the facts andcircumstances of the case, sincethe receipts issued in respect ofthe said “Corpus Fund” wasprepared by the employees of thesociety, an enquiry was stillrequired to decide the nature ofthe said “Corpus Fund”?3. “Whether under the facts andcircumstances of the case, theamount of Rs.1,54,67,621/-constituted the “Corpus Fund” ofthe assessee-society?”19

RAJKOTBENCH1. ITA 361/Rjt/1999 Shri. R.K.Mehta Shri.T.K.Sharma,A.M.“Whether, on the facts and in thecircumstances of the case andmaterial on record the addition ofRs. 40,000/- made by AO onaccount of investment inhousehold expenses should bedeleted or restricted toRs.30,000/-.”Shri.G.C.Gupta,Hon’ble Vice-President (AZ)Pending“Whether, on the facts and in thecircumstances of the case theaddition of Rs. 2,60,000/- inproprietary business namely M/s.Associated Apparels which wasset up by the assessee representinghimself before concernedauthority as R.P. Pandya shouldbe deleted or setaside to the file ofA.O. for ascertaining the actualamount of investment in shedmachinery etc.2. ITA 307/Rjt/2011 Shri. AshwinkumarS. KotechaS/Shri .1.T.K.Sharma,J.M.2. A.L.Gehlot,A.M.“Whether, on the facts andcircumstances of the case, theappeal of the assessee for theAssessment Year 2005-06 bedismissed or addition sustainedby ld.CIT(A), be reduced toRs.29,325/-“Shri.G.C.Gupta,Hon’ble Vice-President (AZ)Yet to be fixed20

CHANDIGARHBENCH1. ITA No.142/CHD/1999A.Y.97-98ITA 550, 489, 586, 587& 588/CHD/99A.Y.87-88, 90-91, 98-99, 1999-2000 & 2000-2001ITA No.143/CHD/1999A.Y.97-98ITA Nos. 589, 590 &591/CHD/2002A.Y. 1998-99,1999-2000,2000-2001ITA 503/CHD/2002A.Y. 1997-98Shri . R.K.GargSmt. Sunaina GargShri . R.K.Garg, &Sons(HUF)S/Shri .1.M.A.Bakshi, VP2. N.K.Saini. A.M.Per J.M.1. “Whether, on the facts and inthe circumstances of this case, theguarantee commission received bythe assessees is a revenue receiptor a capital receipt?”2. “Whether, the decision of theTribunal in assessee’s own casefor the assessment year 88-89 tothe effect that the guaranteecommission is a revenue receipt isinapplicable in view the decisionof the Hon’ble Madras High Courtin the case of CIT v. PondicherryIndustrialPromotionDevelopment & InvestmentCorporation Ltd. (supra), and thedecision of Delhi High Court inthe case of Suessen TextileBearings Ltd. etc. v. Union ofIndia etc. (supra)?”3. “Whether, on the facts and inthe circumstances of the case, theadditional ground raised by therevenue for the assessment year90-91 only deserves to beadmitted and matter for all theassessment years remitted to theCIT(A) for giving an opportunityHon’ble VicePresident(Chandigarh)Fixed on27.07.201221

to the AO to distinguish the twoHigh Courts cases, referred toabove notwithstanding the factthat both the Members of theBench have decided the issuerelating to assessability of theguarantee commission on merits?”Per A.M.1. “Whether, on the facts and inthe circumstances of the case, itcould be held that the guaranteecommission received by theassessees against their personalassets was a capital receipt?”2. “Whether, on the facts and inthe circumstances of the case andalso in law, the Ld. CIT(A) shouldhave provided and opportunity ofbeing heard to the AssessingOfficer when there was a specificdirection by the Tribunal to do so,before arriving at a conclusion onthe basis of judgment of Hon’bleDelhi High Court in the case ofSuessen Textile bearing Ltd. andothers V Union of India, CC2 JJX0082 and Hon’ble Madras HighCourt in the case of CIT V.22

Pondicherry Indl PromotionDevelopment and InvestmentCorp. Ltd. (2000) 245 ITR 859,that the amount received byassessees was a capital receipt.”AMRITSAR BENCH1. IT(SS)A No.14/ASR/2005.IT(SS)ANo.13/ASR/2005.IT(SS)ANo.12/ASR/2005Sh.Vinod GoelM/s SidhantDeposits &Advances(P) Ltd.M/s TrimurtiDeposits &Advances (P) Ltd.S/Shri1. H.S. Sidhu, J.M.2.Mehar Singh,A.M.Shri H.S.Sidhu.1.“Whether, on the facts and inthe circumstances of present case,the issues in the present appealsare covered by the decision of theHon’ble Supreme Court in thecase of Manish Maheshwary Vs.ACIT (2007) 289 ITR 341 (SC)and the decision of the Hon’blejurisdictional High Court inIncome tax Appeal No.519 of2009 decided on 20-7-2010 in thecase of CIT-I, Ludhiana Vs.Mridula Prop. Dhruv fabics,Ludhiana?”Zonal Vice PresidentAdjournedSine-die2.“Whether, on the facts and inthe circumstances of the presentcase, non-production of records bythe revenue in spite of variousopportunities given to them,benefit should go to the revenueor the asessee?”3.“Whether, on the facts and in23

the circumstances of the presentcase, it is mandatory a prerequisitethat the satisfaction to berecorded in the cases of personssearched before issuance of noticeunder section 158 BD of theIncome tax Act. 1961 to theassesse i.e. other person?”Shri. Mehar Singh,AM.1.“Whether on the facts and onlaw, valid Block Assessments canbe cancelled, on the ground ofassumed non-production of recordindicating recording ofsatisfaction u/s 158BD, in a casewhere such satisfaction is dulyevidenced by documentsavailable in the paper book filedby the Deptt. and reproducedverbatim in the order dated06.12.2006 passed by the Benchand subsequent M.A.dated21.01.2009, dismissed by theBench, without even consideringsuch satisfaction?’2.“ Whether, on the facts and onlaw Block Assessments can becancelled by applying the decision24

of jurisdictional High Court,relied upon by the assessee, whichlays down the law that satisfactionunder section 158BD be recordedbefore the conclusion of the BlockAssessments under section 158BCof the Act, in the absence of vitaldetails of dates of completion ofsuch block assessment beingdeterminative factor, indetermining the applicability ofthe said decision, where theparties to the disputes failed tofurnish such dates?”JAIPUR BENCH1. ITA No. 937/Jp/2011 M/s. MahaveerExports, Jaipur.S/Shri1.R.K.Gupta, JM.2.Sanjay Arora,A.M.Shri R.K. Gupta, JM.1. “Whether, in the facts andcircumstance, the addition ofRs.3,58,455/- made by one of thepartners S mt.Kanta Nowlkha isliable to be deleted or to beconfirmed?”2. “Whether, in the facts andcircumstances, the addition of Rs.25

1,00,000/- each in the name ofShri Nem Chand Nowalkha andShri Pankaj Ghiya of the assesseefirm made as capital contributionis liable to be deleted or liable tobe set aside to the file of theAssessing Officer?”3. “Whether, in view of thedecision of Hon’ble JurisdictionalHigh Court in case of KewalKrishan & Partners, 18 DTR 121(Raj.) the entire capitalcontribution made/contributedprior to commencencement ofbusiness in liable to be deleted orto be confirmed in part and partlyto be set aside to the file ofAssessing Officer ?”Shri Sanjay Arora,AM.1. “Whether, section 68 of theIncome-tax Act, 1961 can beinvoked where the assessee failsto satisfactorily explain the natureand source of a case credit foundrecorded by him in his books ofaccount for the relevant year, or isthe Revenue also required toestablish that the assessee had inexistence a source of incomebefore the date on which such26

cash credit was recorded, i.e., inorder to treat the same asunexplained u/s. 68?”2. “Whether, the addition of theimpugned sums as unexplainedcredits u/s.68 can be deleted onthe sole ground that the assesseehad no source of income prior tothe date on which the same werefound recorded in the assessee’sbooks of account, notwithstandingthe fact that it has completelyfailed to discharge the burden ofsatisfactorily explaining the natureand source thereof?”3. “Whether, the view that a cashcredit recorded in the books ofaccount of a partnership firmostensibly as capital contributedby a partner cannot be treated asunexplained u/s.68 in the hands ofthe firm even if the assesseefirmfails to satisfactorily explain thenature and source thereof, andmore particularly if its fails toadduce evidence to establish thatthe alleged capital was actuallycontributed by the partner, issustainable in law in view of thedecision by the Hon’blejurisdictional high court in CIT v.27

Kishorilal Santoshilal (1995)216ITR 9 (Raj.)?”4.1 “Whether, can capital becontributed by a partner to apartnership-firm prior to thecoming into existence of the saidfirm? In any case, whether theclaim of capital contribution byway of transfer of goods on June1,2006 can be accepted in view ofthe fact that the assessee-firmitself came into existence only onJuly 11,2006?”2. ITA No.363 &326/Jp/2011A.Y.2008-09.ITA No.1123/Jp/2011A.Y.2009-10.M/s Escorts HeartInstitute &ResearchCentre,Jaipur.Escort Heart SuperSpeciality HospitalLtd.,Jaipur.S/Shri1.R.K.Gupta,JM.2.Sanjay Arora,AM.4.2 “Is the remand in the case oftwo cash credits of Rs. 1 lac eachin the name of two partnersjustified under the facts andcircumstances of the case, even ascontemplated by the Hon,blejurisdictional high court in thecase of Rajshree Synthetics (P)Ltd. v. CIT (2002) 256 ITR 331(Raj.)?”Shri R.K.Gupta,J.M.1. Whether in the facts andcircumstances of the case, theprovisions of section 194J areapplicable on the payments madeto blood bank ?28

2. Whether in the facts andcircumstances of the case, theprovisions of section 192 orsection 194J are applicable in caseof retainer doctors ?3. Whether in the facts andcircumstances of the case, on themark up/profits earned by FortisHealth World Ltd. (FHWL) onsale of medicines to the assesseeis a commission chargeable to taxunder section 194H or is a sale onwhich provisions of section194Hare not applicable?4. Whether in the facts andcircumstances of the case, on themark up/profits the provisions ofsection 194C can be invoked bythe Tribunal where neither this isa case of department nor of theassessee ?Shri Sanjay Arora, AM.1.1 Whether the payments to theblood banks for carrying outinvestigation procedures, are, inthe facts and circumstances of thecase, made by the assessee-29

hospital or by its patients?1.2 Whether, while deciding anissue under appeal, the tribunalrequired to apply its independentmind thereon, without beinginfluenced by the decision by thefirst appellate authority for asubsequent year, particularlywhen the same was not pressedduring hearing and, accordingly,the parties not heard thereon?2. I am in agreement with theQuestion No. 2 as proposed by myld. Brother, JM.3.1 Whether, can on the admittedset of facts brought on record bythe parties, the inferentialfinding/s by the AppellateTribunal differ from that of eitherparty before it, or is it tonecessarily match therewith?Further, is not the tribunal dutybound to, in deciding an issuebefore it, apply the law asapplicable to the facts found by it,including such inferentialfinding/s?30

JODHPUR BENCH3.2 Whether, in the facts andcircumstances of the case, thesupply of medicines by FortisHealth World Ltd.(FHWL) to theassessee-company for its IPDPharmacy, constitutes anindependent business beingcarried on by FHWL, or is thesaid supply only the result of thework carried out by its relevantmanpower, whose services standalready contracted to the assesseecompany and subject to taxdeduction u/s. 194C of the Act?1. ITA No.362(JU)/10 Smt. SupriyaKanwar, Jodhpur.S/Shri1.Joginder Singh,J.M.2. K.G. Bansal,A.M.“Whether, on the facts and incircumstances of the case and inlaw, the transactions of purchaseand sale of five pieces ofagricultural land with standingfrom any municipal council,amount to transactions on capitalaccount or adventure in the natureof trade?”Hon’blePresident (CZ)Vice-AdjournedSine-dieSd/-(Joginder Singh)J.M.31

“Whether, on the facts and in thecircumstances of the case and saleof five pieces of agricultural landwith standing crop, by way ofseparate conveyance deeds,beyond the prescribed distancefrom any municipal council,amount to transactions on capitalaccount or adventure in the natureof trade?”Sd/-(K.G.Bansal)A.M.32

INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAILIST OF THIRD MEMBER CASES HEARD AND PENDING FOR ORDERS AS ON 06.06.2012.Sr.NoAppeal No.MUMBAI BENCHName of theAssesseeBench Points involved To WhomassignedRemarks1. ITA No.210/Kol/2008A.Y. 2004-05M/s. ShawWallace FinancialServices Ltd.S/Shri.1.R.K.Gupta, J.M.2.Rajendra Singh, A.M.“Whether on the facts and in thecircumstances of the case, the assessment inthe case of assessee for A.Y. 2004-05 can besaid to have been made on a non existentcompany and if so, whether the same can bequashed?Zonal Vice-President(MZ)Heard on01.11.20112. ITA Nos. 2680 &2681/Mum/2008A.Y.2005-06.Shri. IsmailAbdulkarimBalwa., Mumbai,S/Shri.1. R.K.Gupta, J.M.2.Rajendra Singh,A.M.1. “Whether, on the facts and circumstancesof the present case the capital gain on thesale of property in question is liable to betaxed on the basis of long term capital gainsor short term capital gains?Hon’ble Vice-President(MZ)Heard on13.03.20122. “Whether, on the facts of the present casewhere the AO in the case of one co-ownerhas accepted the gain as long term capitalgains then a different view can be taken inthe case of other co-owner?”33

3. ITA 6484/Mum/2009 M/s. HeritageHousingDevelopmentCorporationS/Shri.1.Rajendra Singh, A.M.2.Vijay Pal Rao,J.M.“Whether, on the facts and in thecircumstances of the case and afterconsidering the various decisions of the coordinateBenches of the Tribunal cited beforethe Bench, can it be said that the order of AOhad not merged with the order of CIT(A) onall aspects including quantum of deduction inrelation to claim of deduction under section80IB, which had been disallowed by AO andon appeal, it had been allowed fully byCIT(A)”.Shri.R.S.Syal,A.M.Heard on22.06.2012GUWAHATI BENCH“Whether, on the facts of circumstances ofthe case the order of the Assessing Officerdeemed to have merged with the order of theCIT(A) on the issue of allocation ofcost/value of FSI towards commercialbuilding.”1. ITA No. 25/Gau/2005A.Y.1996-97ITA No. 20/Gau/2005A.Y.2001-2002C.O.No.02/Gau/2005ITA No.165/Gau/2004A.Y.2001-2002M/s BaidCommercialEnterprises Ltd.,Guwahati.M/s Shiva SaktiFloor Mills (P)Ltd., TinsukiaM/s VirgoCements Ltd.,Guwahati.S/Shri.1.Hemant Sausarkar,J.M.2.B.R.Kaushik, A.M.“Whether, on the facts and in thecircumstances of the case the transportsubsidy is to be treated as capital in nature inview of decisions in the following cases-i) CIT Vs Assam Asbestos Ltd. 215 ITR 847(Gau)ii) Sahney Steel & Press Works Ltd. AndOthers Vs CIT 228 ITR 253 (SC)iii) DCIT Vs Assam Asbestos Ltd. (2003)263 ITR 357 (Gau)iv) CIT Vs Rajaram Maize Products Ltd. 251ITR 427(SC) andv) Sdarda Plywood Industries Ltd. Vs.CITShri.PramodKumar,A.M.Heard on04.04.2012Heard on04.04.2012Heard on03.04.201234

238 ITR 354(Cal).COCHIN BENCH1. ITA No.159/Coch/2007B.ParameswaanBharathanS/Shri1.N.VijayakumaranJM2.Sanjay Arora,AM“Whether, explanation(e) to Sub-Sec(3) toSection 80 HHC can override the clause (b)to Section 80 HHC (3) of the Income-taxAct, 1961?”Sd/-J.M.Hon’ble Vice -President (BZ)Heard on15.12.20111. “Whether, there is any inconsistencybetween sec.80 HHC (3) and explanationthereto?”2. “Whether, the indirect cost that is to bereduced from the export turnover of tradinggoods, in terms of s. 80HHC(3) (b), is to bedetermined by apportioning such costs in thestatutorily prescribed formula of the ratio ofthe said turn over to the total turnover or is itliable to any reduction before applying thesaid ratio thereto?”2. ITA 174 &175/Coch/2010Kerala Nut FoodCo.S/Shri1.N.VijayakumaranJM2.Sanjay Arora,AM3. “Whether, the decision by the Hon’blejurisdictional high court in the case of CITVs parry Agro Industries Ltd, 257 ITR 41(Ker) has applicability in the facts andcircumstances of the case or not?”“Whether, explanation (e) to Sub-Sec (3) toSection 80 HHC can override the clause (b)to Section 80 HHC (3) of the Income tax Act,1961?”Sd/-Hon’ble Vice -President (BZ)Heard on15.12.201135

J.M.1. “Whether, there is any inconsistencybetween sec. 80HHC (3) and explanationthereto?”2. “Whether, the indirect cost that is to bereduced from the export turnover of tradinggoods, in terms of s.80HHC(3)(b), is to bedetermined by apportioning such costs in thestatutorily prescribed formula of the ratio ofthe said turnover to the total turnover, or is itliable to any reduction before applying thesaid ratio thereto?”3. ITA No.207/Coch/2009A.Y. 2001-02Baby MarineProductsS/Shri.1.N.Vijaykumaran,J.M.2.Sanjay Arora,A.M.3. “Whether, the reliance by the Revenue onthe decision by the Hon’ble jurisdiction Highcourt in the case of CIT Vs Parry AgroIndustries Ltd, 257 ITR 41 (Ker), is in thefacts and circumstances of the case, appositeor misplaced?”Sd/-A.M.1. “Whether, or not the issue of the ‘indirectexports’ by a supporting manufacturer (inrespect of the turnover disclaimed by theexport house in its favour) as forming part ofits export turnover and, thus, exigible fordeduction under section 80HHC of the Act,stands settled by a series of bindingdecisions?”Hon’ble Vice-President(BZ)Heard on19.03.20122. “Whether, in any case, the matter, afterexamination of the obtaining facts and36

circumstances, stands concluded in theaffirmative in the assessee’s own case for thecurrent assessment year itself, precluding itbeing agitated in the instant proceedings?”3. “If so, whether the Assessing Officer wasaccordingly right in proceeding to apply theretrospective amendment to sec. 80HHC (bythe Taxation Laws Amendment Act, 2005,with retrospective effect from 1.4.1998) byinvoking section 154 of the Act?”AMRITSAR BENCHSd/-A.M.1. ITA.No.378/AR/2009 M/s RamanujamSpiritual PublicCharitable trust.S/Shri1.H.S. Sidhu,J.M.2. Mehar Singh, A.M.Sh.H.S.Sidhu,J.M.1. “Whether, on the facts and in thecircumstances of the case and the recordavailable, the assessee is entitled for grant ofapproval of renewal of exemption undersection 80G(5) of the Income tax Act,1961?”Zonal VicePresidentHeard on15.05.20122. “Whether, on the facts and in thecircumstances of the case, the CIT canoverlook the binding precedent of the orderdated 19.12.2008 passed by the ITAT,Amritsar Bench in assessee’s own case inITA No.512(ASR)/2008 in para Nos.9 and10, page No.5, holding that the learned CIT37

erroneously rejected the said corrigendum asa mere after thought and not having anybinding force and in the absence of anyprovision of law prohibiting the assesseefrom amending the original Trust Deed byway of corrigendum?”3. “Whether on the facts and in thecircumstances of the case, the learned CITcan refuse the approval of renewal ofexemption under section 80G(5) of theIncome tax Act, 1961 on the ground that oneof the objects No.4 that the assessee-trust hasbeen established for a particular religiouspurpose for the followers of the deity, whohave to be only Hindus, inspite of the factthat he has already granted the approval ofrenewal of exemption in many times undersection 80G(5) of the Income tax Act,1961?”Sh. Mehar Singh, AM.1. “ Whether, on the facts and in thecircumstances of the case, the settlers or thetrustees are competent to effect validamendment or deletion or addition to theobject clause, contained in the original trustdeed,when there is no such power providedunder the originally constituted trust andwhat are the legal consequences of suchamendment?’“Whether, on the facts and in the38

circumstances of the case, the assesse-trust isentitled for approval, in terms of originalTrust Deed and the amended one, undersection 80G(5) of the Act, withoutcompliance with the statutory conditionsprecedent of section 80G(5)(iii) read withexplanation 3 to section 80G(5C) of theAct?”39