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ICDS applicability may govern specified transactional tax issues, raising whether prior judicial precedents remain operative.
The ICDS, notified under section 145(2), are intended to standardise computation of business and other income for the transactional issues they address and apply to assessment years following notification. They were framed after reviewing judicial views to supply authoritative guidance where earlier judicial decisions arose without statutory standards; nevertheless, some ICDS provisions may conflict with those precedents, posing a question about which authority should prevail.
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ICDS influence the computation of gross receipts/turnover used to determine whether statutory TDS provisions apply; while ICDS govern income computation and not TDS rules, their application to receipts can indirectly change whether individuals, HUFs or presumptive taxpayers cross the turnover benchmarks that attract TDS obligations.
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ICDS applicability: applies to taxable income computation under business or other income irrespective of Ind AS adoption.
For computing taxable income under the heads Profits and Gains of Business or Profession and Income from Other Sources, ICDS provisions govern determination of income irrespective of whether an entity follows erstwhile Accounting Standards or Ind AS for financial reporting; companies adopting Ind AS must apply ICDS adjustments when computing taxable income under those heads.
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ICDS applicability clarified: sector-specific provisions and statutory overrides determine application to banks, insurers and financial firms.
ICDS apply generally for income computation unless an ICDS contains sector-specific provisions or the substantive law provides a special regime; ICDS VIII addresses banks and certain financial institutions, while statutory and regulatory accounting requirements for insurance business prevail over general ICDS provisions.
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ICDS applies to non-resident income taxed at a flat rate-such as interest, royalty and fees for technical services-because the flat tax is applied after determination of income, so Income Computation and Disclosure Standards govern measurement and recognition for computing taxable income.
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ICDS revenue recognition applies to presumptive tax schemes computing income from gross receipts or turnover.
ICDS on revenue recognition applies to taxpayers under presumptive tax schemes when such schemes compute income by reference to gross receipts, turnover or similar revenue measures; absent an express exclusion, ICDS principles govern the computation of those receipts or turnover for income-tax computation and disclosure.
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Accounting method application: ICDS governs sources using the mercantile system but not sources accounted on a cash basis.
ICDS applies at the source level: it governs only those sources where the assessee follows the mercantile (accrual) system of accounting and does not apply to sources maintained on the cash system, a distinction intended to prevent escapement of income caused by heterogeneous accounting across an assessee's activities.
Manuals Income Tax
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ICDS applicability limited to mercantile accounting; excludes cash-accounting and individuals/HUFs not subject to tax audit.
ICDS applies to persons following the mercantile system of accounting and does not apply to those following the cash system. For individuals and HUFs, ICDS is applicable only if they carry on business or profession and their books are required to be audited under the tax audit provisions; it does not apply where there is no business or professional income even if mercantile accounting is followed for other heads.
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Foreign tax credit conversion uses telegraphic transfer buying rate on the last day of preceding month.
Foreign tax credit is determined by converting the currency of the foreign-tax payment at the telegraphic transfer buying rate applicable on the last day of the month immediately preceding the month in which that tax is paid or deducted.
Act Rules Income Tax
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Foreign Tax Credit documentation: verified income statement plus certificate and payment or deduction proof to claim credit.
Foreign Tax Credit eligibility requires a verified statement of foreign income and foreign tax paid in the prescribed form, plus a certificate or statement specifying the nature of the income and tax deducted or paid issued by the foreign tax authority, the person who deducted the tax, or signed by the taxpayer, accompanied by a tax challan or online payment acknowledgement for payments and proof of deduction where tax was withheld.
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Foreign tax credit allowed against MAT/AMT like normal tax, but any excess over normal provisions is ignored.
Foreign tax credit under Rule 128 of the Income tax Rules, 1962, is allowable against tax payable under MAT or AMT in the same manner as under the normal provisions; any foreign tax credit available against MAT/AMT that exceeds the credit allowable under normal provisions is ignored when computing MAT/AMT credit.
Act Rules Income Tax
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Foreign tax credit: credit limited to lower of domestic tax and foreign tax; treaty excess is disregarded.
Rule 128 of the Income tax Rules, 1962 limits Foreign Tax Credit to the lesser of domestic tax chargeable on the doubly taxed income and the foreign tax actually paid, and directs that any foreign tax paid in excess of the tax payable under the applicable DTAA be ignored for credit computation.
Act Rules Income Tax
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Foreign Tax Credit denial: no credit for domestic interest, fees or penalties and for disputed foreign taxes.
Rule 128 restricts Foreign Tax Credit by disallowing FTC against interest, fees or penalties payable under the Income-tax Act, and by excluding any foreign tax (or part thereof) that is disputed by the assessee.
Act Rules Income Tax
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Foreign Tax Credit requires evidence of settlement, proof of payment and an undertaking within six months of dispute resolution.
Foreign Tax Credit (FTC) is allowed for disputed foreign tax only if, within six months from the end of the month in which the dispute is finally settled, the assessee furnishes evidence of settlement, evidence that the tax liability has been discharged by the assessee, and an undertaking that no refund in respect of that amount has been or will be claimed.
Act Rules Income Tax
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Foreign tax definition determines FTC scope: DTAA-covered taxes apply, otherwise income-tax-type foreign levies qualify for credit.
Definition of foreign tax for Foreign Tax Credit under Rule 128: where a DTAA exists, foreign tax is the tax covered by that DTAA; where no DTAA exists, foreign tax is the tax payable under the foreign country's law in the nature of income-tax as defined in the statutory explanation, including excess profits tax or business profits tax charged on profits by central or local authorities.
Act Rules Income Tax
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Foreign tax credit proportionate allocation ensures foreign tax relief is apportioned when income is taxed across multiple years.
Foreign tax credit under the Income tax Rules operates on a proportionate allocation principle when the same income is taxable in more than one year; the credit entitlement must be apportioned across the years in which the income is offered to tax so that relief for foreign taxes corresponds to the portion of income taxed in each year.
Act Rules Income Tax
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Foreign tax credit allowed when foreign tax corresponds to income offered or assessed to tax in India in the same year.
Foreign tax credit is available to Indian residents for tax paid in a foreign country or specified territory, and is allowed only in the year when the corresponding income is offered to tax or assessed to tax in India, creating a temporal link between domestic taxation of the income and recognition of the foreign tax credit.
Manuals Income Tax
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Advance Pricing Agreement requires modified returns and extends reassessment deadlines for affected assessment years by tax authorities.
Entry into an Advance Pricing Agreement fixing the arm's length price requires the taxpayer to file a modified return for each affected assessment year within three months from the end of the month in which the APA is executed. If an assessment was already completed, the Assessing Officer must reassess under the APA and complete that reassessment within one year from the end of the financial year in which the modified return is filed. If the assessment was pending, the Assessing Officer may complete it within an extended timeframe permitted for APA-related assessments.

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Reopening of assessment - Substance over Form - Failure to disclose material fact - Duty of the AO to make an enquiry to test the correctness of the disclosure made even if the statutory forms signed and certified by the Chartered Accountant

10 July, 2019

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2019 (7) TMI 415 - MADRAS HIGH COURT

2018 (10) TMI 442 - MADRAS HIGH COURT

Reopening of the assessment for the year 2010-2011. - Whether ingredients of Section 147 r.w.s 148 are satisfied?

Facts of the case

In the present case, deduction u/s 10B of Income Tax Act, 1961 was allowed to assessee (100% EOU) on the basis of Form No.56G. In the said Form in Column No.8 it is mentioned as 10th year of claim, but, in Column No.7, the date of commencement of manufacturing is mentioned as 28.03.2000. Thus the Assessing Officer stated that the year under consideration happens to be 11th year. The Assessing Officer also referred to the copy of the Form 56G for the assessment year 2001-2002. Accordingly the Assessing Officer informed the assessee that the assessee has exclusively extended its 10B holiday period to the 11th year and hence become ineligible for deduction under Section 10B.

Submission of the assessee

There was no opening stock as on 1.4.2000. The first invoice was raised only on 31.05.2000 to UNICEF, New Delhi. With regard to the date of commencement of manufacturing activity, the assessee stated that the firm came into existence on 20.03.2000, registered as an EOU on 29.03.2000 and has commenced manufacturing activity only after 01.04.2000.

With regard to the discrepancy pointed out by the Assessing Officer in the notice dated 25.01.2017, the assessee stated that the substance over Form is required to be taken into consideration and mere reporting of the date in the Form 56G does not give a conclusive picture as to the date of starting of manufacturing activity which is only in the month of April or which only in the assessment year 2001-02 which has been clearly claimed as the first year of exemption. Therefore, the assessee requested to drop all the assessment proceedings and reopen the assessment.

Single member bench [2018 (10) TMI 442 - MADRAS HIGH COURT], while entertaining the writ petition, has observed that:

Every non disclosure of material facts will not or cannot be a justifiable reason for reopening sustainable under judicial scrutiny.

On the other hand, such non disclosure of a material fact must be of such nature that, but for such non disclosure, the income, relatable to such material fact, would not have escaped assessment. In other words, it should lead to an irrebuttable conclusion that by the conduct of the assessee, either by providing wrong or incorrect particulars or by not providing the full and correct particulars, he should have made the Assessing Officer not to bring a particular income to tax, which is otherwise liable to be taxed. If this test is applied to the present case, I am of the view that the Revenue has to fail.

Revenue took the matter before the division bench of the High Court [2019 (7) TMI 415 - MADRAS HIGH COURT] wherein it was observed that:-

There can be no escape from this fact and the assessee should accept this mistake.................It may be true that the assessee can now take a stand that substance over form is to be considered but what is important is that the assessee at the first instance had a duty to give proper and correct details. We may say that the assessee failed in doing so. Be that as it may, what is required on the part of the Assessing Officer is not to go mechanically by the details disclosed by the assessee in the statutory form and or for that matter signed and certified by the Chartered Accountant. The Assessing Officer being cast with a statutory duty an enquiry is required to test the correctness of the disclosure made in such statutory forms. This is why the concept of substance over form was always preferred by Courts while dealing with such matters.

The second mistake which the assessee committed, which had invited the problem, was not mentioning the correct date of commencement of commercial production in its reply dated 02.02.2007 and this again was submitted through the very same Chartered Accountant. In the reply, there is a vague statement with regard to the commencement of manufacturing activity and what has been stated is that the assessee commenced manufacturing activity only after 01.04.2000. Thus, we are of the view that the assessee appears to have not been very seriously contesting the matter at the relevant point of time. Wisdom dawned upon the assessee only after the appellant passed the order dated 13.02.2017. It is thereafter the assessee through their Chartered Accountant gave the exact date of production/manufacture as 25.05.2000.

Keeping aside all these issues, we have examined the correctness of the order passed by the learned Single Bench and we note with approval the findings of the learned Single Bench in paragraphs 16 and 17 of the impugned order. The above finding rendered by the learned Single Bench is just and proper.

As pointed out by the learned Single Bench every non-disclosure of material facts will not or cannot be a justifiable reason for reopening an assessment. We reiterate that what was required to be considered is that, substance over form.

Therefore, we are of the considered view that the learned Single Bench was perfectly right in allowing the writ petition which had been done after thorough examination of the facts and the legal position. In our considered view the revenue has not made out any grounds to interfere with the order passed by the learned Single Bench.

 


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2019 (7) TMI 415 - MADRAS HIGH COURT

2018 (10) TMI 442 - MADRAS HIGH COURT

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Acts Income Tax