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 Intention of Assessee at the time of Purchase of Shares relevant to determine Tax Liability: ITAT
 ITAT gives partial reprieve to Uber in tax demand case

January, 01st 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)          27.12.2012
     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,J.   circumstances of the case R.S.Syal,A.M.          Disposal of MA
     A.Y. 1996-97                          M.                  interest      income      of
                                           2.Rajendra          Rs.73,92,16,611/-       (Rs.
                                           Singh,A.M.          39,23,71,781               +
                                                               Rs.34,68,44,830) is asseable
                                                               to tax in the year under

4.   ITA 210/Kol/2008    M/s. Shaw         S/Shri.             "Whether, on the facts and in Hon'ble Vice-      Fixed on
     A.Y.2004-05         Wallace Financial 1.R.K.Gupta,J.M.    the circumstances of the case, President, (MZ)   08.01.2013
                         Services Ltd.     2.Rajendra          the assessment in the case of
                                           Singh,A.M.          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 quashed?"
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.   SP                 Smt.Uma Pandey, S/Shri.               SP No.03/Lkw/2012              Hon'ble              Hearing is
     No.03/Lkw/2012                     Sunil Kumar                                          President,I.T.A.T.   awaited.
     (A/o ITA                           Yadav,J.M.            "Whether, the stay earlier
     188/Lkw/2010)                      2.B.R.Jain,A.M.       granted by the Tribunal can
     A.Y. 2007-08       M/s.State Urban                       be extended till disposal of
     SP.No.04/Lkw/201   Development                           the appeal in a case where the
     2                  Agency.                               appeal has been heard by the
     (A/o ITA                                                 Tribunal and is pending with
     103/Lkw/2012)                                            the Members for order?"
     A.Y. 2007-08                                                                    Sd/-

                                                              "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,    Adjourned
     92/Agr/2008 &   Tabacco Co. &     1.Hari Om       facts and circumstances of the Hon'ble Vice-   Sinedie
     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       has not the Trading results
                     Ltd.              Arora,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?"
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.                Not yet fixed
     Block period f       Gauwahati.          1. Hement           circumstances of these cases      D.K.Tyagi,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?"
                                                                 2. "Whether, the decision of
                                                                 the Tribunal in assessee's
                                                                 own case for the assessment
     ITA No.             Smt. Sunaina                            year 88-89 to the effect that
     143/CHD/1999        Garg                                    the guarantee commission is a
     A.Y.97-98                                                   revenue        receipt       is
     ITA Nos. 589, 590                                           inapplicable in view the
     & 591/CHD/2002                                              decision of the Hon'ble
     A.Y. 1998-99,                                               Madras High Court in the
     1999-2000,                                                  case of CIT v. Pondicherry
      2000-2001                                                  Industrial          Promotion
                                                                 Development & Investment
     ITA 503/CHD/2002    Shri . R.K.Garg,                        Corporation Ltd. (supra), and
     A.Y. 1997-98        & Sons(HUF)                             the decision of Delhi High
                                                                 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          present case, the issues in the
     No.13/ASR/2005.   Deposits &          Singh,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           circumstance, the addition of (Chandigarh Zone)
                                       Arora,A.M.         Rs.3,58,455/- made by one of
                                                          the partners S mt.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               JM.            circumstances of the case, the Zone)
                       Centre,Jaipur.      2. SanjayArora,   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                              2.        Whether in the facts
                       Ltd.,Jaipur.                          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
3.   ITA No.             Smt. Asha        S/Shri                Whether in the facts and Shri G.D.Agarwal,     Pending
     110/JP/2012         Mandowra,Jaipur. 1.R.K.Gupra,          circumstances of the present Vice-
                                            JM.                 case, the order of Ld. CIT(A) President(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-
     (A.O.of ITA No.                          JM.               case, the order of Tribunal in President(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. JoginderSingh,   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 trade?"
                                                                                 (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     S/Shri              "Whether     on the facts and           Hon'ble     Vice
     No.921/Rjt/2010   Ltd.Rajkot.   1.T.K.Sharma,       pcircumstances of the case, the         President,
                                     J.M.                ld.CIT(A) is justified in directing     (Ahmedabad Zone)
                                                         the AO to grant the exemption of
                                     2.D.K.Srivastava,   Rs.22,96,155/- u/s.10(34) of the
                                     A.M.                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
                                                         "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 06.12.2012.

Sr. Appeal No.     Name of the                  Bench                  Points involved                  To Whom assigned   Remarks
No                 Assessee
1.   ITA No. 25/Gau/2005    M/s Baid            S/Shri.                "Whether, on the facts and in Shri.Pramod           Heard on
     A.Y.1996-97            Commercial          1.Hemant Sausarkar,    the circumstances of the case Kumar,A.M.            04.04.201
                            Enterprises Ltd.,   J.M.                   the transport subsidy is to be                      2
                            Guwahati.           2.B.R.Kaushik, A.M.    treated as capital in nature in
                                                                       view of decisions in the
2.   ITA No. 20/Gau/2005    M/s Shiva Sakti                            following cases-                                    Heard on
     A.Y.2001-2002          Floor Mills (P)                                                                                04.04.201
                            Ltd., Tinsukia                             i) CIT Vs Assam Asbestos Ltd.                       2
     C.O.No.02/Gau/2005                                                215 ITR 847 (Gau)
                                                                       ii) Sahney Steel & Press Works
                            M/s Virgo                                  Ltd. And Others Vs CIT 228
3.   ITA No.165/Gau/2004    Cements Ltd.,                              ITR 253 (SC)
     A.Y.2001-2002          Gauwahati.                                 iii) DCIT Vs Assam Asbestos                         Heard on
                                                                       Ltd. (2003) 263 ITR 357 (Gau)                       03.04.201
                                                                       iv) CIT Vs Rajaram Maize                            2
                                                                       Products Ltd. 251 ITR 427(SC)
                                                                       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.Narayanm      Heard on
     1668, 1669/Kol/2011    Industries Ltd.,    1.Pramod Kumar, A.M. circumstances of the case `Fly Zonal Vice President   17.12.2012
                            Kolkata             2.George Mathan, J.M. Ash Handling System' is
                                                                      eligible to be treated as `Air
                                                                      Pollution Control Equipment'
                                                                      for the purpose of granting
                                                                      depreciation at 100%?"

1.   ITA 720/Coch/2010   Al-Ameen            S/Shri.               "Whether levy of penalty Hon'ble Vice              Heard on
     A.Y.2005-06 &       Educational Trust   1.N.Vijaykumaran,     under      section    271D     is President(BZ).   14.12.201
     ITA 721/Coch/2010                       J.M.                  justified?"                                        2
     A.Y.2006-07                             2.Sanjay Arora,A.M.                   Sd/-
                                                                   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
                                                                   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?

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