Monday, March 26, 2012

FINANCE BILL, 2012 & JUDICIAL DECISIONS


on Monday, March 26, 2012

A Reckoner of Judicial decisions proposed to be overcome/incorporated in the Act 

The Finance Bill, 2012 contains a large number of proposed amendments which are based on judicial decisions. Some of these proposed amendments are for overcoming judicial decisions unfavourable to the Revenue. Some of the proposed amendments are meant to resolve controversy due to conflicting rulings. Some proposed amendments are for incorporating in the statute principles set out in judicial decisions. These are all discussed below :

Subject-matter
Court Rulings
Proposed Amendments to overcome/ incorporate Court rulings or to resolve conflicting judicial opinion
(1)
(2)
(3)
Definition of capital asset in section 2(14)
Applying the test of enforceability, influence/ persuasion of parent company over its subsidiary cannot be construed as a right in the legal sense since capital asset covers 'property' of any description and a right has to be legally enforceable to be 'property' and 'capital asset'- Vodafone International Holdings B.V. v Union of India [2012] 17 taxmann.com 202/204 Taxman 408 (SC)
Explanation is proposed to be inserted below section 2(14)(definition of 'capital asset') with retrospective  effect from the 1-4-1962 which clarifies that "property" includes and shall be deemed to have always included any rights in or in relation to an Indian company, including rights of management or control or any other rights whatsoever
Definition of transfer in section 2(47)
On transfer of shares of a foreign company to a non-resident offshore, there is no transfer of shares of the Indian Company, though held by the foreign company, in such a case it cannot be contended that the transfer of shares of the foreign holding company, results in an extinguishment of the foreign company control of the Indian company and it also does not constitute an extinguishment and transfer of an asset situate in India. Transfer of the foreign holding company's share offshore, cannot result in an extinguishment of the holding company right of control of the Indian company nor can it be stated that the same constitutes extinguishment and transfer of an asset/ management and control of property situated in India- Vodafone International Holdings B.V. (supra)
Further, Explanation below section 2(47) (definition of "transfer") proposed to be renumbered as Explanation 1 and newExplanation 2 proposed to be inserted with retrospective effect from the 1-4-1962 to clarify that ""transfer" includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights has been characterised as being effected or dependent upon or flowing from the transfer of a share or shares of a company registered or incorporated outside India"
Section 9(1)(i)-Income deemed to accrue or arise in India from transfer of capital asset situated in India
The legislature has not used the words "indirect transfer" in section 9(1)(i). If indirect transfer of a capital asset is read into section 9(1)(i) then the words capital asset situated in India would be rendered nugatory. Similarly, the words underlying asset do not find place in section 9(1)(i). Thus, the words directly or indirectly in Section 9(1)(i) go with the income and not with the transfer of a capital asset (property). The Direct Tax Code (DTC) Bill, 2010 proposes to tax income from transfer of shares of a foreign company by a non-resident, where the fair market value of the assets in India, owned directly or indirectly, by the company, represents at least 50% of the fair market value of all assets owned by the company. This proposal indicates in a way that indirect transfers are not covered by the existing section 9(1)(i) of the Act. [Per CJI S.H. Kapadia].
On a comparison of Section 64 and Section 9(1)(i) what is discernible is that the Legislature has not chosen to extend Section 9(1)(i) to "indirect transfers". - Vodafone International Holdings B.V. (supra)
New Explanation 4 seeks to clarify that the expression "through" shall mean and include and shall be deemed to have always meant and included "by means of", "in consequence of" or "by reason of".
New Explanation 5 proposed to be inserted below section 9(1)(i) w.r.e.f.1-4-1962 to provide that capital asset situated in India will also cover Share or interest in a foreign company/entity(company or entity registered or incorporated outside India if such share/interest derives, directly or indirectly, its value substantially from the assets located in India. Therefore, transfer of such share/interest will attract capital gains even if effected outside India
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In W.T. Ramsay Ltd. v. IRC [1981] 1 All E.R. 865 the "look at" test was enunciated.. According to that test, the task of the Revenue is to ascertain the legal nature of the transaction and, while doing so, it has to look at the entire transaction holistically and not to adopt a dissecting approach.. The Revenue cannot start with the question as to whether the impugned transaction is a tax Deferment/saving device but that it should apply the "look at" test to ascertain its true legal nature [See Craven v. White [1988] 3 All ER 495 which further observed that genuine strategic tax planning has not been abandoned by any decision of the English Courts till date]. Applying the above tests, we are of the view that every strategic foreign direct investment coming to India, as an investment destination, should be seen in a holistic manner. While doing so, the Revenue/Courts should keep in mind the following factors: (i) the concept of participation in investment, (ii) the duration of time during which the Holding Structure exists; (iii) the period of business operations in India; (iv) the generation of taxable revenues in India; (v) the timing of the exit; (vi) the continuity of business on such exit. - Vodafone International Holdings B.V. (supra)
General Anti-Avoidance Rule
[Provisions in New Chapter X-A (sections 95 to 102)]

Consequences of treating an arrangement as an impermissible tax avoidance arrangement:
• Treating the place of residence of any party to the arrangement or the situs of an asset or of a transaction, at a place other than the place of residence, location of the asset or location of the transaction as provided under the arrangement.
• Considering or looking through any arrangement by disregarding any corporate structure.

Factors not to be taken into account while determining whether an agreement lacks commercial substance: 
•   The period or time for which the arrangement (including operations therein) exists;
•   The fact of payment of taxes, directly or indirectly, under the arrangement
•   The fact that an exit route (including transfer of any activity or business or operations) is provided by the arrangement.
Section 195(1) - Withholding Tax
Section 195 would apply only if payments made from a resident to another non-resident and not between two non-residents situated outside India- Vodafone International Holdings B.V.(supra)
Section 195 proposed to be amended w.r.e.f. 1-4-1962 to provide that Obligation to deduct tax u/s 195(1) applicable to all persons, whether resident or non-resident, whether or not the non-resident has a residence, place of business or business connection in India; or any other presence in any manner whatsoever
Section 9(1)(vi)-Definition of "royalty"-
Whether consideration for use of computer software is royalty or not-Section 9(1)(vi) provides that any income payable by way of royalty in respect of any right, property or information is deemed to be accruing or arising in India. The term "royalty" has been defined in Explanation 2 which means consideration received or receivable for transfer of all or any right in respect of certain rights, property or information. In DIT v. Ericsson AB[2011]16 taxmann.com 371/[2012] 204 Taxman 192 (Delhi), it was held that supply of software which was an inseparable part of GSM system and incapable of independent use is not taxable as royalty. In order to constitute 'royalty' as defined in Explanation 2 to section 9(1)(vi), what is contemplated is a payment that is dependent upon user of copyright and not a lump sum payment made for acquisition of a copyrighted article. Contrary view was given by Karnataka High Court in CIT v Samsung Electronics Co. Ltd. [2011] 16 taxmann.com 141/203 Taxman 477
Proposed Amendments to resolve controversy consideration for use of computer software is royalty or not -Explanation to section 9(1)(vi) amended with retrospective effect from 1-6-1976 to provide that consideration for use or right to use of computer software is royalty by clarifying that transfer of all or any rights in respect of any right, property or information as mentioned in Explanation 2, includes and has always included transfer of all or any right for use or right to use a computer software (including granting of a licence) irrespective of the medium through which such right is transferred. Thus, this amendment seeks to resolve controversy regarding whether consideration for use of computer software is royalty or not which has arisen due to contrary decisions of Delhi High Court and Karnataka High Court.

Whether satellite payments are royalty or not-An issue arises whether the right, property or information has to be used directly by the payer or is to be located in India or control or possession of it has to be with the payer. Also whether satellite payments are royalty or not was an issue.
•  Income received by foreign satellite companies not taxable in India since customers merely given access to broadband available in transponder and Control and constructive possession of transponders could not be handed over by satellite operator to its customers- Asia Satellite Telecommunications Co. Ltd. v. DIT[2011] 197 Taxman 263/9 taxmann.com 168 (Delhi)
•  Payments for lease of transponder capacity is not royalty nor fees for technical services –ISRO Satellite Centre, In re [2008] 175 Taxman 97 (AAR - New Delhi)
•  Payments made to service providers for use of bandwidth provided for downlinking signals in the US not taxable in India as 'royalty' or 'fees for technical services: –Infosys Technologies Ltd v Dy.CIT [2011] 45 SOT 157/10 taxmann.com 1 (Bang.)
Explanation to section 9(1)(vi) proposed to be amended with effect from 1-6-1976 to provide that
•  Royalty u/s 9(1)(vi) includes consideration in respect of any right, property or information, whether or not its possession or control is with the taxpayer, it is used directly by the taxpayer, or its location is in India
•  royalty includes and has always included consideration in respect of any right, property or information, whether or not
(a) the possession or control of such right, property or information is with the payer;
(b) such right, property or information is used directly by the payer;
(c) the location of such right, property or information is in India.
•  the term "process" includes and shall be deemed to have always included transmission by satellite (including uplinking, amplification, conversion for downlinking of any signal), cable, optic fibre or by any other similar technology, whether or not such process is secret
New proposed section 50D - Capital gains
Capital gains are calculated on transfer of a capital asset, as sale consideration minus cost of acquisition. In some recent rulings, it has been held that where the consideration in respect of transfer of an asset is not determinable or ascertainable, then, as the machinery provision fails, the gains arising from the transfer of such assets is not taxable and also that fair market value cannot be taken as deemed full value of consideration unless there is a specific provision in this respect. This particularly happens when shares in Indian companies are transferred 'without consideration' by companies as part of restructuring exercise. [See Dana Corporation, In Re [2010]186 Taxman 187(AAR-New Delhi),Goodyear Tire & Rubber Co., In Re [2011] 199 Taxman 121/11 taxmann.com 43 (AAR - New Delhi), Amiantit International Holding Ltd., In re [2010]189 Taxman 149(AAR - New Delhi)] Obviously, these transfers are not "gifts" but consideration for them is general improvement in business/synergies etc which is not "ascertainable" or "quantifiable" In Amiantit International Holding Ltd., In re (supra), the AAR observed "As stated in the Law and Practice of Income-tax (by Kanga, Palkhivala and Vyas) income, profits and gains maybe realized in the form of money's worth as well as money, in kind as well as in cash. Even then, the alleged consideration for which the shares are to be transferred should be capable of being evaluated on commercial and accounting principles. The possibility of applicant-transferor improving its overall business by virtue of re-organization and the mere possibility or chance of the applicant making better returns in the near or distant future as a consequence of reorganization can hardly be regarded as a consideration accruing or arising to the transferor when he has no right to receive a definite or an ascertainable amount or benefit from the transferee. A capital gain cannot arise on the basis of uncertain and indefinite future contingencies or hypothetical and imaginary estimations. There is really no effective answer from the Revenue's side to the question as to what is the valuable consideration that has accrued or arisen to the transferor and how it can be converted into money's worth for the purpose of computing the alleged capital gain. The only endeavour of revenue's counsel was to take a plea that the "benefits and advantages" mentioned by the applicant in para H of page 7 of the application represent the valuable consideration for transfer. ……. Thus, the full value of consideration for the transfer of shares is sought to be deduced from the overall objectives of reorganization and the resultant changes in investment. It is not explained how they can be evaluated in terms of money…"
In order to overcome the judicial decisions, new section 50D is proposed to be inserted with effect from A.Y.2013-14 to provide that fair market value of asset shall be deemed to be the full value of consideration if actual consideration is not attributable or determinable. This proposed amendment takes a cue from the following observations of ITAT in Dy. CIT v. Summit Securities Ltd [2012] 19 taxmann.com 102 (Mum.)(SB)
"…….......the full value of consideration for the purposes of section 48 has to be considered as only the amount actually received or accruing as a result of the transfer of capital asset except where it has been substituted with fair market value or by any other mode. It is only in such specific cases that the actual amount received or accruing shall be replaced with the fair market value or such other mode as specified. In the absence of any specific provision, the general meaning of the amount actually received or accruing is to be considered as the full value of consideration received or accruing as a result of transfer of capital asset. …….."
Section 40A(2)-Disallowance of domestic related party transactions
Section 40A of the Act empowers the Assessing Officer to disallow unreasonable expenditure incurred between related parties. Further, under Chapter VI-A and section 10AA, the Assessing Officer is empowered to recompute the income (based on fair market value) of the undertaking to which profit linked deduction is provided if there are transactions with the related parties or other undertakings of the same entity. However, no specific method to determine reasonableness of expenditure or fair market value to recompute the income in such related transactions is provided under these sections.
The Supreme Court in the case of CIT v.Glaxo SmithKline Asia (P.) Ltd. [2010] 195 Taxman 35 in its order has, after examining the complications which arise in cases where fair market value is to be assigned to transactions between domestic related parties, suggested that Ministry of Finance should consider appropriate provisions in law to make transfer pricing regulations applicable to such related party domestic transactions. Taking a cue from the above decision,, the transfer pricing regulations are proposed to be extended to the transactions entered into by domestic related parties or by an undertaking with other undertakings of the same entity for the purposes of section 40A, Chapter VI-A and section 10AA. The concerns of administrative and compliance burden are addressed by restricting its applicability to the transactions, which exceed a monetary threshold of Rs. 5 crores in aggregate during the year. In view of the circumstances which were present in the case before the Supreme Court, there is a need to expand the definition of related parties for purpose of section 40A to cover cases of companies which have the same parent company. It is, therefore, proposed to amend the Act to provide applicability of transfer pricing regulations (including procedural and penalty provisions) to transactions between related resident parties for the purposes of computation of income, disallowance of expenses etc. as required under provisions of sections 40A, 80-IA, 10AA, 80A, sections where reference is made to section 80-IA, or to transactions as may be prescribed by the Board, if aggregate amount of all such domestic transactions exceeds Rupees 5 crore in a year. It is further proposed to amend the meaning of related persons as provided in section 40A to include companies having the same holding company. This amendment will take effect from 1st April, 2013 and will, accordingly, apply w.e.f. Assessment Year 2013-14 [Clauses 12, 23, 29, 33, 35, 37, 38, 92, 94, 97]
Section 56(2)(vii) - Gifts
Under the existing provisions of clause (vii) of sub-section (2) of section 56 any sum or property received by an individual or HUF for inadequate consideration or without consideration is deemed as income and is taxed under the head "Income from other sources". However, in the case of an individual, receipts from relatives are excluded from the purview of this section and are therefore treated as not taxable. The definition of relative as given in this sub-clause is only in relation to an individual and not in relation to a HUF. Therefore, gifts received by HUF from its members are not exempt from donee-based taxation in the hands of HUF. in Vineetkumar Raghavjibhai Bhalodia v. ITO [2011] 11 taxmann.com 384/46 SOT 197 (Rajkot) wherein ITAT held that in the context of section 56(2)(vi) that an HUF is nothing but 'a group of relatives'. So if an individual receives gifts whether from an individual relative or a group of relatives, he should be exempt from taxation. The ITAT observed "…..Actually a 'Hindu Undivided Family" constitutes all persons lineally descended from a common ancestor and includes their mothers, wives or widows and unmarried daughters. All these persons fall in the definition of "relative" as provided in Explanation to clause ( vi) of section   56(2) of the Act. The observation of the CIT(A) that HUF is as good as 'a body of individuals' and cannot be termed as "relative" is not acceptable. Rather, an HUF is 'a group of relatives'..… It is not expressly defined in the Explanation that the word "relative" represents a single person. And it is not always necessary that singular remains singular. Sometimes a singular can mean more than one, as in the case before us……. The word "Hindu Undivided Family", though sounds singular unit in its form and assessed as such for income-tax purposes, finally at the end a "Hindu Undivided Family" is made up of "a group of relatives". Thus, in our opinion, a singular word/words could be read as plural also, according to the circumstance/ situation. ……."
It is proposed to amend the provisions of section 56 so as to provide that any sum or property received without consideration or inadequate consideration by an HUF from its members would also be excluded from taxation. For this purpose, clause (e) of the Explanation below section 56(2)(vii) is proposed to be substituted to provide that in case of HUF, relative means members of the HUF. This amendment will take effect retrospectively from the 1st day of October, 2009 The proposed amendment as above is inspired by the decision of ITAT in Vineetkumar Raghavjibhai Bhalodia (supra)
Section 68-Cash credits
Section 68 of the Act provides that if any sum is found credited in the books of an assessee and such assessee either
(i) does not offer any explanation about nature and source of money; or
(ii) the explanation offered by the assessee is found to be not satisfactory by the Assessing Officer, then, such amount can be taxed as income of the assessee.
The onus of satisfactorily explaining such credits remains on the person in whose books such sum is credited. If such person fails to offer an explanation or the explanation is not found to be satisfactory then the sum is added to the total income of the person. Certain judicial pronouncements have created doubts about the onus of proof and the requirements of this section, particularly, in cases where the sum which is credited as share capital, share premium etc which are sought to be overcome by proposed amendment to section 68 as under:
• The onus cast upon the assessee company was discharged upon disclosure of the names and particulars of the alleged bogus shareholders. It was for the Department to conduct its own enquiry thereafter and additions if any may be made in the hands of the shareholders –Lovely Exports(P.) Ltd. [Application No. 11993 of 2007, dated 11-1-2008]
• Even if subscribers to the capital are not genuine, the amount received by the company as share capital could not be assessed in the hands of the company itself. Such amounts should be considered for assessment in the hands of persons who are alleged to have really advanced the money. –Stellar Investment Ltd [2001] 115 Taxman 99 (SC)
• Delhi HC held that the amount of share application money received by a Company from alleged bogus shareholders could not be regarded as undisclosed income u/s 68 when the assessee furnished details regarding shareholders. If the names of the alleged bogus shareholders are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law. The Supreme Court upheld this view. –CIT v Divine Leasing & Finance Ltd [2007] 158 Taxman 440(SC)
• "It would be asking for a moon if such companies are asked to find out from each and every share applicant/subscribers to first satisfy the assessee companies about the source of their funds before investing." –CIT v Kamdhenu Steel & Alloys Ltd. [2012] 19 taxmann.com 26 (Delhi)
• Where assessee had duly discharged its onus by furnishing names, age, address, date of filing application of share, number of shares of each subscriber, the AO was not justified in making addition u/s 68. – CIT v SIT Extrusion (P.) Ltd. [2011] 333 ITR 269 (MP)
• It was not for the assessee to place material before the Assessing Officer about creditworthiness of the shareholders. Once the company had given the addresses of the shareholders and their identity was not in dispute, it was for the Assessing Officer to make further inquiry with the investors about their capacity to invest the amount in shares. CIT v Arunananda Textiles(P.)Ltd[2011] 203 Taxman 32 (Kar.) (Mag.)/15 taxmann.com 226 (Kar.)
• Once the assessee proves the identity of creditors/share applicants, by either furnishing their PAN numbers or income-tax assessment numbers, and shows genuineness of transaction by showing money in his books either by account payee cheque or by draft or by any other mode, onus of proof would shift to revenue.- CIT v. Dwarkadhish Investment (P.) Ltd. [2010] 330 ITR 298/194 Taxman 43 (Delhi) Once documents like PAN Card, bank account details or details from the bankers were given by the assessee, onus shifts upon the Assessing Officer and it is on him to reach the shareholders. The Assessing Officer could not burden the assessee merely on the ground that summons issued to the investors were returned back with the endorsement not traceable – Creative World Telefilms Ltd. (supra)
It is, therefore, proposed to amend section 68 of the Act to provide that the nature and source of any sum credited, as share capital, share premium etc., in the books of a closely held company shall be treated as explained only if the source of funds is also explained by the assessee company in the hands of the resident shareholder. However, even in the case of closely held companies, it is proposed that this additional onus of satisfactorily explaining the source in the hands of the shareholder, would not apply if the shareholder is a well regulated entity, i.e. a Venture Capital Fund, Venture Capital Company registered with the Securities Exchange Board of India (SEBI).
 
The above proposed amendment while seeking to overcome judicial precedents in Col (3) takes into account judicial pronouncements such asCIT v. Value Capital Services (P.) Ltd. [2008] 307 ITR 334 (Delhi) and CIT v. Oasis Hospitalities (P.) Ltd. [2011] 333 ITR 119/198 Taxman 247/9 taxmann.com 179 (Delhi) and Creative World Telefilms Ltd.[2011] 203 Taxman 36 (Bom.) (Mag.)/15 taxmann.com 183 (Bom.) which while recognizing that the pernicious practice of conversion of unaccounted money through masquerade of investment in the share capital of a company needs to be prevented, have advised a balance to be maintained regarding onus of proof to be placed on the company. The Courts have drawn a distinction and emphasized that in case of private placement of shares the legal regime should be different from that which is followed in case of a company seeking share capital from the public at large. 
In the case of closely held companies, investments are made by known persons. Therefore, a higher onus is required to be placed on such companies besides the general onus to establish identity and creditworthiness of creditor and genuineness of transaction. This additional onus, needs to be placed on such companies to also prove the source of money in the hands of such shareholder or persons making payment towards issue of shares before such sum is accepted as genuine credit. If the company fails to discharge the additional onus, the sum shall be treated as income of the company and added to its income."
Bombay HC recently in Major Metals Ltdnoted that "Significantly, the judgment of the Delhi High Court makes a distinction between a case where shares are allotted in the course of a large scale subscription to the shares of a public company on the one hand and a case of private placement on the other." Relying on subsequent rulings in Value Capital Services (P.) Ltd. (supra) and Oasis Hospitality (P.) Ltd. (supra) and Creative World Telefilms Ltd. (supra), HC held that "However, the initial burden on the assessee would be some-what heavy in case the assessee is a private limited company where the shareholders are closely related because in such a case the assessee cannot feign ignorance about the status of the parties". Thus, the proposed amendment incorporates the law laid down in above cases.
Section 115JB-MAT
Judicial decisions which exempt non-Schedule VI companies (insurance, banking or electricity company) from MAT-Proviso to section 211(2) of the Companies Act,1956 permits certain companies, e.g. insurance, banking or electricity company to prepare their profit and loss account in accordance with the provisions specified in their regulatory Acts. Also, Courts and ITAT have held in a catena of decisions that since profit and loss account for MAT purposes is required by section 115JB(2) to be prepared as per Schedule VI, banks, electricity companies etc. which are exempt from Schedule VI are not liable to MAT as under:
•    In Krung Thai Bank PCL v. Jt. DIT(International Taxation)[2011] 16 taxmann.com 239/[2012] 49 SOT 70 (Mum.)(URO), the Tribunal held that the provisions of section 115JB can only come into play when the assessee is required to prepare its profit and loss account in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act. The starting point of computation of MAT under section 115JB is the result shown by such a profit and loss account. In the case of banking companies, however, the provisions of Schedule VI are not applicable in view of exemption set out under proviso to section 211(2) of the Companies Act. The final accounts of the banking companies are required to be prepared in accordance with the provisions of the Banking Regulation Act. The provisions of section 115JB cannot thus be applied to the case of a banking company.
•    In Kerala State Electricity Board v. Dy. CIT [2011] 196 Taxman 1/[2010] 8 taxmann.com 118, the Kerala High Court held that section 115JB stipulates that the accounting policies, accounting standards, etc., shall be uniform, both for the purpose of income-tax as well as for the information statutorily required to be placed before the annual general meeting conducted, in accordance with section 210 of the Companies Act, 1956. However, the assessee though was by definition a company under the Income-tax Act and deemed to be a company for the purpose of the Income-tax Act, by virtue of the declaration under section 80 of the Electricity Supply Act, it was not a company for the purpose of the Companies Act. Therefore, it was not obliged either to convene an annual general meeting or place its profit and loss account in such general meeting. As a matter of fact, a general meeting contemplated under section 166 of the Companies Act, 1956 was not possible in the case of the assessee, as there were no shareholders for the assessee-board. On the other hand, under section 69 of the Electricity Supply Act, the assessee was obliged to keep proper accounts, including the profit and loss account, and to prepare an annual statement of accounts, balance sheet, etc., in such form as had been prescribed by the Central Government and notified in the Official Gazette. Thus, it could be seen that coming to the maintenance of the accounts, the assessee, though was deemed to be a 'company' - both by virtue of operation of section 80 of the Electricity Supply Act for the purpose of Income-tax Act and by virtue of the definition of the expression 'company' under the Income-tax Act, yet it was required to keep and maintain its accounts in a manner specified by the Central Government, but not in the manner specified in the Companies Act. Therefore, MAT would not apply to electricity companies.
In Union Bank of India v. Asstt. CIT [2011] 16 taxmann.com 304/[2012] 49 SOT 32 (Mum.), the ITAT upheld the contention of the assessee-bank that it was not a company under Companies Act but is only deemed to be a company as per the provisions of section 11 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970. Therefore as held by the Jurisdictional ITAT in the case of Maharashtra State Electricity Board v. Jt. CIT [2002] 82 ITD 422 (Mum.) the provisions of section 115JB cannot be made applicable to it.
Proposed amendments to section 115JB to overcome judicial decisions which exempt non-Schedule VI companies (insurance, banking or electricity company) from MAT-The Finance Bill, 2012 proposes to substitute section 115JB(2) with effect from A.Y.2013-14 to provide that companies which are not required under the proviso to section 211(2) of the Companies Act to prepare their profit and loss account in accordance with the Schedule VI of the Companies Act, 1956, profit and loss account prepared in accordance with the provisions of their regulatory Acts shall be taken as a basis for computing the book profit under section 115JB.
 
Explanation 1 to section 115JB(2)-Book Profit definition
Judicial decision on revaluation reserve balance pertaining to revalued asset disposed off- The above amendment has been made to overcome the decision in ITO v. Galaxy Saws (P.) Ltd.[2011] 13 taxmann.com 179/132 ITD 236 (Mum.) wherein it was held that no addition could be made to the net profit on account of revaluation reserve directly taken to the balance sheet while computing the book profit. In that case, the assessee, company had sold its premises for Rs. 96 lakhs. Book value of property was Rs. 3,29,143 and, therefore, there was a gain of Rs. 92,72,858. Assessee got property revalued and as per report of registered valuer, value of property was Rs. 97.44 lakhs. Gain in book value of property was taken by assessee to balance sheet as revaluation reserve. However, loss arising on sale, i.e., Rs. 1.44 lakhs (Rs. 97.44 lakhs minus Rs. 96 lakhs) was debited by assessee to profit and loss account. Assessing Officer rejected computation of book profit made by assessee based on revalued cost and added gain of Rs. 92.70 lakhs computed on basis of book value of asset originally shown. The ITAT held that since revaluation reserve had been directly taken to balance sheet and not debited to profit and loss account, it could not be added under clause (b) of Explanation 1 to section 115JB(2). The provisions of Explanation 1 to section 115JB(2) that amount carried to any reserve by whatever name called has to be added to the net profit if the amount had been debited to the profit and loss account. In this case the revaluation reserve had been directly taken to the balance sheet and not debited to the profit and loss account and, therefore, the amount could not be added under clause (b) ofExplanation 1 to section 115JB(2).
Explanation 1 to section 115JB has been amended with effect from A.Y.2013-14 to substitute the words ""if any amount referred to in clauses (a) to (i) is debited to the profit and loss account, and as reduced by,—"with the words ""(j) the amount standing in revaluation reserve relating to revalued asset on the retirement or disposal of such asset, if any amount referred to in clauses (a) to (i) is debited to the profit and loss account or if any amount referred to in clause (j) is not credited to the profit and loss account, and as reduced by,—".
The above proposed amendment intends to overcome the judicial decision in Col(3). Further, Since (AS)10 permits companies to transfer "revaluation reserve relating to revalued asset on the retirement or disposal of such asset", to general reserve, companies follow this treatment. The Explanatory Memorandum to the Finance Bill, 2012 explains that as a result of this treatment permitted by (AS)10 "the gains attributable to revaluation of the asset is not subject to MAT liability. It is, therefore, proposed to amend section 115JB to provide that the book profit for the purpose of section 115JB shall be increased by the amount standing in the revaluation reserve relating to the revalued asset which has been retired or disposed, if the same is not credited to the profit and loss account."
Section 234D- Application to AO to determine appropriate proportion of sum chargeable even when payment not chargeable under the Act
In GE India Technology Cen. (P.) Ltd. v CIT [2010] 193 Taxman 234 (SC), it was held that the application of section 195(2) pre-supposes that the person responsible for making the payment to the non-resident is in no doubt that tax is payable in respect of some part of the amount to be remitted to a non-resident but is not sure as to what should be the portion so taxable or is not sure as to the amount of tax to be deducted. In such a situation, he is required to make an application to the ITO(TDS) for determining the amount
The Supreme Court ruling in Col. (3) sought to be overcome by amending section 195 to provide that class of persons or cases (to be notified by CBDT) responsible for making payment to a non-resident, whether or not such payment is chargeable under the Act, shall make an application to the AO to determine the appropriate proportion of sum chargeable.
Section 209-Computation of Advance Tax
In Dy.CIT v. Pride Foramer SAS [2008] 24 SOT 59 (Delhi), it was held by ITAT that tax deductible at source has to be excluded while computing the advance tax liability as provided in section 209(1)(d), even if the tax had not actually been deducted. If entire income of assessee is income on which tax deductible at source, no advance tax could be payable by assessee and, therefore, no interest under section 234B could be charged -
To overcome the ITAT ruling in Col (3), section 209 is proposed to be amended w.r.e.f.1-4-2012 to provide that that where a person has received any income without deduction or collection of tax, he shall be liable to pay advance tax in respect of such income. The rationale is to make an assessee liable for payment of advance tax in respect of income which has been received or paid without deduction or collection of tax.
Section 234D-Interest on excess refund
In ITO v. Ekta Promoters (P) Ltd. [2008] 113 ITD 719 (Delhi) (SB) a Special Bench of Delhi ITAT held that the provision for levy of interest on excess refund u/s 234D was prospective and applicable from AY 2004-05 since the provisions of section 234D were substantive and hence could not be held as retrospective in nature, unless specifically provided in the statute
To overcome the ITAT ruling in Col.(3), section 234D is proposed to be amended to provide that the provisions of section 234D would be applicable to any proceeding, which is completed on or after 1st June, 2003, irrespective of the assessment year to which it pertains. Section 234D provides for levy of interest on excess refund granted to the assessee.

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