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Case Laws Income Tax
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TNMM comparability requires consistent operating-cost treatment and FAR-based selection, while search matrices cannot replace evidence-led functional analysis.
TNMM requires consistent computation of operating profit and operating cost for the tested party and comparables. A provision for doubtful debts connected with sales and trade receivables may be an operating expense, as may routine business levies; income-tax on profits remains excluded. A search matrix is a disciplined evidentiary tool, not a statutory bar to an out-of-matrix comparable. Inclusion requires proof of functional fit, filter satisfaction and reasons for its absence, while rejection cannot rest solely on matrix absence. FAR analysis, segmental reliability and material scale differences govern comparability.
Case Laws Customs
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Reasonable belief in gold seizure requires recorded objective grounds before the reverse burden for smuggling can arise.
Gold seizure under Section 110 requires the proper officer to hold, before seizure, objectively supportable reasons to believe that goods are liable to confiscation. For gold, Section 123 shifts the burden of disproving smuggling only after a lawful seizure made in reasonable belief that the gold is smuggled. A general panchnama recital, foreign markings, high purity, or an uncorroborated retracted statement cannot alone establish that foundation. Reasons must exist contemporaneously and cannot be supplied retrospectively through later investigation.
Case Laws Income Tax
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Political contribution deductions require proof that payments are genuine, not merely bank transfers, receipts, and recipient registration.
Registration of the recipient political party, non-cash remittance, banking records and donation receipts are necessary evidentiary facts for a political-contribution deduction, but do not conclusively prove a genuine contribution. Where credible material indicates an accommodation-entry arrangement involving return of funds through intermediaries, the claimant must substantiate the transaction and address taxpayer-specific circumstances. General allegations about a recipient cannot alone displace a claim without a sufficient nexus to the taxpayer's own payment. Penalty initiation requires separate determination of under-reporting or misreporting and a reasonable opportunity of hearing.
Case Laws GST
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Estate-limited GST recovery permits post-death assessment of legal representatives while protecting heirs' independent assets after business discontinuance.
Section 93 permits post-death GST determination against a legal representative where a liable person dies. If the business is discontinued, tax, interest and penalty may be recovered only from the deceased's inherited estate and only within its capacity; the heir's independent assets remain outside that limit. Proceedings may be initiated without a pre-death notice, but must be addressed to the legal representative in that capacity, follow the applicable adjudication process, and provide hearing and a reasoned order.
Case Laws FEMA
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Recorded reasons to believe govern foreign-asset seizure; non-confirmation requires appellate resolution before contradictory adjudication proceeds.
Section 37A permits seizure of equivalent domestic assets only where the authorised officer records written reasons to believe that foreign assets are held in contravention of FEMA. The competent authority must examine the material after hearing both sides and either confirm or set aside seizure. A reasoned non-confirmation based on an absent statutory threshold is substantive on seizure, though it does not finally decide the underlying contravention. Pending appeal, the adjudicating authority cannot displace that finding or adopt a contrary premise; Section 37A(4) applies only to confirmed seizure.
Case Laws Companies Law
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Unstayed tribunal dismissal leaves former directors without corporate authority while banks follow valid company instructions amid management disputes.
Where an oppression and mismanagement petition has been dismissed, a pending appeal without an appellate stay does not itself restore a former director's authority or suspend the dismissal's operative effect. Sections 241 and 242 require statutory prejudice and prescribed Tribunal findings; procedural irregularities in director removal may be relevant but do not alone establish oppression. Banks should ordinarily follow formally authorised company instructions rather than decide unresolved management disputes, unless a binding judicial or statutory restraint applies.
Case Laws Benami Property
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Benami property claims cannot be recast through wills or employment-based trust when pleadings assert beneficial ownership.
Benami-property claims based on a claimant's payment for property titled in another person's name may fall within the statutory definition when the property is alleged to be held for that claimant's benefit. A Will, succession claim, or other later instrument does not provide an independent basis of title where the pleaded foundation is restoration of beneficial ownership. The statutory scheme prohibits benami arrangements, bars enforcement of claimed beneficial ownership, and treats prohibited re-transfers as invalid; self-acquired title in the named holder's name does not displace the pleaded funding arrangement.
Case Laws Income Tax
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Reason to believe in reassessment requires tangible material, a live nexus, and recorded reasons; review of examined issues is barred.
Income-tax reassessment under Sections 147 and 148 is permissible only where recorded reasons, assessed at the time of notice, disclose a bona fide reason to believe that chargeable income escaped assessment. Final proof is unnecessary at that stage, but relevant tangible material must have a rational, live link to escapement. Reopening cannot be used to review an issue consciously examined and decided in the original scrutiny; nor can later or extraneous material supplement the recorded reasons. The taxpayer may seek the reasons, file focused objections, and receive a speaking order before reassessment continues.
Case Laws Income Tax
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Political-donation deduction disallowance does not itself establish misreporting; enhanced penalty requires proof of a specific statutory default.
Disallowance of a political-contribution deduction under Section 80GGC and imposition of penalty under Section 270A are separate statutory inquiries. An adverse finding on genuineness or eligibility may raise assessed or reassessed income, but cannot alone establish misreporting. Enhanced penalty requires proof that the taxpayer's conduct falls within a specific Section 270A(9) category, supported by a precise notice and reasoned factual findings.
Case Laws Income Tax
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Conditional charitable registration cannot suspend tax benefits pending litigation outside the statutory grant and cancellation framework.
Section 12AB permits the authority, after inquiry into objects, genuine activities and material legal compliance, to grant registration for the statutory period or reject the application. It does not create a contingent form of registration whose tax consequences await future litigation. Post-registration violations must be addressed through the separate cancellation process, requiring inquiry and hearing. Conditions in prescribed forms or administrative guidance may operationalise statutory duties but cannot create extra-statutory eligibility thresholds, future-conduct obligations or anticipatory cancellation consequences. Binding jurisdictional rulings remain applicable unless stayed, modified or reversed.
Case Laws Customs
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Transaction value reassessment requires disclosed comparable evidence, while protest-qualified consent preserves appellate rights against enhanced customs valuation.
Transaction value under Section 14 and Rule 3 is the primary basis for valuing imported goods. Rule 12 permits rejection only where an objectively sustainable reasonable doubt persists after considering further information; on request, the grounds must be disclosed in writing and a hearing afforded. Redetermination must follow Rules 4 to 9 sequentially and rely on demonstrably comparable import data. Written acceptance of reassessment may dispense with a speaking order under Section 17(5), but protest-qualified or provisional-clearance correspondence may preserve the statutory right to appeal.
Case Laws GST
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Leasehold rights assignment may fall outside GST when the lessee permanently transfers the entire proprietary estate.
GST treatment of assignment of leasehold rights turns on whether the lessee has made a complete transfer of its existing estate or continues to provide occupation or enjoyment. Where the assignor transfers the whole residual term, possession, building and associated rights, retains no reversionary or controlling interest, and the assignee succeeds directly to obligations towards the original lessor, the transaction may be characterised as transfer of benefits arising out of land rather than a supply of services. Labels such as premium, salami or transfer fee are not conclusive.
Case Laws Income Tax
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Leave encashment exemption: Non-government employees may claim the enhanced notified ceiling subject to statutory computation conditions.
Retirement leave encashment received by employees other than Central or State Government employees falls under Section 10(10AA)(ii). Exemption depends on retirement, the ten-month earned-leave limit, average salary for the preceding ten months, earned-leave entitlement restrictions, aggregate limits, and prior exempt receipts. The enhanced notified ceiling of Rs. 25,00,000, deemed to operate from 1 April 2023, is treated in the Tribunal approach discussed as a beneficial rationalisation available to eligible pending claims for earlier assessment years, without displacing the statutory computation conditions.
Case Laws Income Tax
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Dependent agent permanent establishment requires proven habitual contractual authority; liaison, administrative support, and customer contact alone remain insufficient.
Dependent agent permanent establishment under Article 5(5) requires proof that an Indian person has authority to negotiate and enter contracts for the foreign enterprise and habitually exercises that authority. Customer liaison, account management, administrative support, communication of pre-approved terms, document routing, and assistance with online standard-form contracting fall short unless Indian personnel substantively determine essential terms or routinely bring negotiations to a binding commercial conclusion. Formal offshore execution is not decisive where local personnel effectively control material negotiations. Corporate association, economic dependence, and independent-agent considerations cannot replace proof of the positive authority and habitual-exercise requirements.
Case Laws Customs
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Proper-officer jurisdiction permits assigned customs officers to issue recovery notices without having performed the original assessment.
Customs show-cause jurisdiction requires both appointment as an officer of customs and function-specific assignment as the proper officer. Assessment under Section 17 and recovery under Section 28 are distinct functions; the original assessing officer need not alone issue a recovery notice. Retrospective validation of qualifying officers' proper-officer status applies independently of the preserved historical recovery regime. Confiscation and penalty proceedings require written grounds, prescribed prior approval, representation, and hearing. Where jurisdiction exists, disputed facts, evidence, limitation, and procedural compliance ordinarily require determination through adjudication.
Case Laws Money Laundering
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Equivalent-value attachment permits securing untainted pre-offence assets only when unavailable criminal proceeds, valuation, and statutory risk are established.
Pre-offence property is ordinarily not directly derived from later scheduled-offence activity, but may be provisionally attached as equivalent value where actual proceeds are unavailable. Such attachment requires identification and reasoned valuation of the alleged proceeds, material showing their unavailability, and recorded reasons to believe that non-attachment risks concealment, transfer, or other frustration of confiscation. A later use of illicit funds to repay loans, construction borrowing, or secured obligations may separately establish a direct or indirect nexus. Section 24 presumptions do not replace the foundational requirements for attachment.
Case Laws IBC
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Cross-assignment disciplinary suspension requires proportionate, assignment-specific hearing while creditor committees retain statutory control over replacement decisions.
Where disciplinary misconduct concerns one CIRP, cross-assignment suspension requires a proportionate link to the pleaded charge, supporting material and hearing afforded. Section 220(2) permits disciplinary sanctions after hearing, while Regulation 13(7) requires intimation to Committees of Creditors and the Adjudicating Authority. On the prima facie construction applied, intimation informs each Committee's decision on continuation or replacement rather than automatically removing the professional from unrelated ongoing assignments. The Board's regulatory role and the Committee's replacement power remain distinct but connected.
Case Laws GST
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Electronic authentication of GST notices requires prescribed signatures; portal uploads, reference numbers, and DRC summaries cannot independently validate proceedings.
Rule 26(3) makes electronic issuance and authentication by digital signature, e-signature, or a notified verification mode cumulative conditions for GST notices and orders. A portal upload concerns service, while a system-generated reference number, DRC summary, or DIN performs tracking or procedural functions; none independently establishes the authorised officer's authentication. Section 169 governs service rather than validity, and Section 160 does not ordinarily cure a defect preventing attribution of the instrument to the competent officer. DRC-01 cannot replace the statutory notice, and DRC-07 supports recovery only upon a valid order.
Case Laws GST
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GST bail classification requires precise Section 132 charging clauses, with investigation status, cooperation and proportionality governing custodial necessity.
GST-evasion bail adjudication requires a case-specific assessment of custodial necessity rather than an automatic consequence of the alleged tax magnitude, Magistrate-triability, or a maximum five-year sentence. Section 132 classification depends on the precise offence clause and punishment bracket, not merely on the alleged quantum of evasion. Relevant considerations include the stage of investigation, cooperation with summons, security of evidence, individual role, risks of absconding or interference, proportionality, and personal liberty under Article 21.
Case Laws Customs
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Certificate-specific origin verification prevents preferential-duty denial based solely on unrelated suspect certificates or supplier doubts.
Preferential customs-duty treatment requires compliance with applicable rules of origin and reliable proof that imported goods qualify as originating. A country-of-origin certificate is important evidence but does not remove the importer's duty to possess supporting origin information and exercise reasonable care. Challenges to preferential treatment must be certificate-specific and consignment-specific: an adverse finding concerning identified certificates cannot, without direct evidence, invalidate separate certificates. Customs verification should identify the particular proof of origin, alleged defect and material linking it to the import, while fraud, suppression or misrepresentation independently established may support substantive action.

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Comparison of Section 108 "Set off of losses under same head of income." between the Income-Tax Act, 2025 (as passed) and the Income-Tax Bill, 2025 (as originally introduced)

1 September, 2025

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Section 108 Set off of losses under same head of income.

Income-tax Act, 2025

At a Glance

These materials compare Clause 108 of the Income Tax Bill, 2025 - (Old Version) with Section 108 as enacted in the Income-tax Act, 2025. Both provisions regulate intra-head set-off of losses, including the special rules for capital gains. The provisions affect taxpayers who realise losses and gains under the same head (notably capital gains) and the tax administration that applies set-off rules. Effective date or decision date: Not stated in the document.

Background & Scope

Statutory hook: Chapter VII, "Set off, or Carry Forward and Set off of Losses," Income-tax Act/Bill, 2025. The clauses address intra-head set-off of losses. The text explicitly excludes "Capital gains" from the general rule in sub-section (1) and then dedicates sub-section (2) to rules for capital gains losses u/ss 72 to 90. Definitions of "short-term capital asset" and "long-term capital asset" are Not stated in the document. Cross-references: sections 72 to 90 are referenced as the computational framework for capital gains; the content of those sections is Not stated in the document.

Statutory Provision Mode

Text & Scope

Clause 108 (Old Version) contains two operative parts:

  • Sub-section (1): A general rule for the same head (excluding capital gains). If the net result from any source under any head of income (other than "Capital gains") is a loss for a tax year, the assessee may set off such loss against income from any other source under the same head for that tax year.

  • Sub-section (2): Specific rules for capital gains losses computed u/ss 72-90. Losses arising from transfer of a capital asset are classified by whether the asset is long-term or short-term and the set-off permitted differs accordingly:

    • (a) Loss arising from transfer of a long-term capital asset shall be set off only against gains, if any, from transfer of another long-term capital asset.

    • (b) Loss arising from transfer of a short-term capital asset shall be set off against gains, if any, from transfer of any capital asset.

Interpretation

Legislative intent as expressed by the text: the statute draws a distinction between capital gains and other income heads. It preserves the conventional tax treatment that long-term capital losses are more restricted - they cannot be used to offset short-term capital gains or other forms of income - whereas short-term capital losses are more freely available against gains from any capital asset. The language indicates an intent to confine cross-category set-off within the capital gains head to protect the treatment accorded to long-term capital gains (often taxed differently) while allowing short-term losses to mitigate capital gains across categories.

Exceptions/Provisos

No provisos, exceptions, time-limits or carry-forward rules are stated in Clause 108 of the Bill. Carry-forward of unabsorbed losses, conditions for set-off in subsequent years, or special carve-outs (e.g., for specified transactions) are Not stated in the document.

Illustrations

  • Example 1: Taxpayer A has, in one tax year, a loss of Rs. 100,000 on transfer of a short-term equity holding (short-term capital loss) and a gain of Rs. 80,000 on transfer of a long-term property (long-term capital gain). Under Clause 108(2)(b) the short-term capital loss can be set off against the long-term capital gain. (All numeric facts hypothetical but consistent with the text.)

  • Example 2: Taxpayer B has a long-term capital loss of Rs. 50,000 from sale of a long-term asset and a short-term capital gain of Rs. 30,000 in the same year. Under Clause 108(2)(a) the long-term loss cannot be set off against the short-term gain; it may be set off only against gains from transfer of another long-term capital asset. If no such gains exist, set-off in that year is precluded by Clause 108(2)(a).

Interplay

Clause 108 cross-references sections 72 to 90 as the computational framework for capital gains: the Bill contemplates that capital gains/loss computation, classification and quantum will be governed by those sections. Other interactions - for example with provisions on carry-forward and set-off across subsequent years, tax rates, or special exemptions - are Not stated in the document.

Summary of Differences between Clause 108 of the Income Tax Bill, 2025 - (Old Version) with Section 108 of the Income-tax Act, 2025

  • Structure and Wording of Capital Gains Set-off Rules
    Difference: Section 108(2) of the Act divides capital asset losses into two specific categories: (a) short-term capital asset loss set off against income from any other capital asset; and (b) long-term capital asset loss set off only against income from any other long-term capital asset. The Bill (Clause 108(2)) reverses the emphasis and frames the rule as: (a) loss from a long-term capital asset shall be set off only against gains (if any) from transfer of another long-term capital asset; (b) loss from a short-term capital asset shall be set off against gains (if any) from transfer of any capital asset.

    Practical impact: The Act's text appears to permit short-term losses to be set off against any other capital asset income (which would include both STCG and LTCG), and long-term losses only against other long-term capital income. The Bill's text expressly states the converse ordering but functionally is similar except for phrasing: Bill explicitly allows short-term losses to be set off against gains from any capital asset (including long-term), and restricts long-term losses to long-term gains only. The primary practical consequence is clarity: the Bill is explicit that long-term capital losses cannot be used against short-term capital gains, whereas the Act also contains that restriction but phrases the short-term rule as set off against "any other capital asset" which may be read the same; the Bill's framing is marginally clearer on the directional limitation for long-term losses.

  • Placement and Minor Wording Variations
    Difference: The Act uses the heading "(2) Where the net result of computation of income made for any tax year u/ss 72 to 90 in respect of-" followed by two subparagraphs (a) and (b) specifying short-term and long-term capital assets. The Bill uses "(2) Any loss, as a result of computation made u/ss 72 to 90, for any tax year, arising from transfer of a capital asset as arrived at under a similar computation made for the tax year in respect of any other capital asset being,--" followed by (a) and (b).

    Practical impact: This is a drafting difference only; the Bill's version is slightly more verbose and emphasizes that the loss is "arising from transfer of a capital asset." No substantive change in coverage is evident from the texts provided.

  • Explicit Cross-References to "Capital gains" Exclusion
    Difference: Both texts exclude "Capital gains" from clause (1) by the parenthetical "(other than "Capital gains")" when addressing set-off under the same head. There is no substantive difference here.

    Practical impact: No change; both provisions maintain capital gains as a special category requiring separate rules under clause (2).

  • Overall Substance
    Difference: There is no substantive divergence in the fundamental rule that losses under the same head can be set off against other sources within that head and that capital gains have specialized set-off rules distinguishing short-term and long-term losses. The Bill's text is slightly different in ordering and phraseology concerning which category of loss can be set off against which gains.

    Practical impact: Tax practitioners can treat the provisions as substantively aligned; however, reliance on the enacted Act (Section 108) rather than the Bill text is necessary for certainty. The practical effect on taxpayers' ability to set off capital losses appears unchanged: long-term capital losses are confined to long-term capital gains, whereas short-term capital losses may be applied against gains from any capital asset.

Practical Implications

  • Compliance and risk areas: Taxpayers must correctly classify capital asset transfers as short-term or long-term (classification rules Not stated in the document) because the permissible intra-head set-off depends on that classification. Misclassification could lead to incorrect set-off, reassessment risk, or tax litigation.
  • Record-keeping/evidence: Though the Bill does not prescribe records, taxpayers will need contemporaneous evidence of acquisition date, sale date, and computation of capital gains/losses (Not stated in the document as express requirements). Retention of documentation supporting holding period and computation is implied by the need to establish short-term vs long-term status.
  • Tax planning constraints: The rule restricting long-term capital losses to long-term gains limits the utility of such losses to offset short-term gains or other capital gains in the year - affecting timing strategies for disposal of assets where taxpayers seek to utilise losses against higher taxed or immediate gains.

Key Takeaways

  • Clause 108 distinguishes general intra-head set-off (excluding capital gains) from specific capital gains set-off rules.
  • Long-term capital losses are limited to set-off only against long-term capital gains in the same year.
  • Short-term capital losses can be set-off against gains from transfer of any capital asset in the same year.
  • The Old Version (Bill) and the enacted Section 108 are substantively consistent; differences are primarily in ordering and phrasing.
  • The Bill does not state definitions of short-term/long-term, carry-forward rules, effective date, or administrative procedures - these are Not stated in the document.
  • Accurate classification of capital assets and maintenance of records supporting holding periods and computations are essential for correct application.
  • Absence of express exceptions or cross-year carry-forward language in Clause 108 means readers must consult other provisions (Not stated here) for such rules.

Full Text:

Section 108 Set off of losses under same head of income.

Topics

Acts Income Tax