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II. Direct Taxes Case Laws:
1. Prakash & Ors. Vs. Phulavati & Ors., Civil Appeal No. 7217/2013, Date of Judgment: 16.10.2015, Supreme Court of India
Whether
the benefit provided under Section 6 of the Hindu Succession
(Amendment) Act, 2005 have retrospective effect so as to give daughters
an equal share in coparcenary property?
Held_ No
In brief
a daughter of coparcener claimed the right in ancestral property of her
late father in view of the Hindu Succession (Amendment) Act, 2005 where
the father died before the date of commencement of the Amendment Act i.e. 9th September, 2005. At
the time of first appeal filed before the hon’ble High Court, it was
held that she would be entitled to the benefit to the provisions of the
Amendment Act. The hon’ble High Court relied on the decision of Supreme
Court in G. Sekhar Vs. Geetha 6 SCC 99 (2009).
The
hon’ble Supreme Court held that the legislature has expressly made the
Amendment applicable on and from its commencement of the Act i.e. 9th
September, 2005 and only for the situations where death of the
coparcener in question is after the Amendment. Thus the rights under the
amendment are applicable to living daughters of living coparceners as
on 9th September, 2005 irrespective of when such daughters are born.
It was
further held that an amendment of a substantive provision is always
prospective unless either expressly or by necessary intendment it has
been made retrospective. The proviso to Section 6(1) and 6(5) clearly
exclude the transactions which may have taken place prior to 20th
December, 2004 with the object of giving finality to transactions prior
to that date and not to make the main provision retrospective in any
manner.
The appeal is allowed.
(Please click here for judgment)
2. M/s Shivalik Prints Limited Vs. Addl. CIT, I.T.A. No. 4698/Del./2011, Date of Decision: 05.02.2016, ITAT - New Delhi
Whether
the subsidy received from Ministry of Textile, Government of India
under the Technology Upgradation Fund Scheme (TUF Scheme) against the
purchase of new machinery is capital receipt?
Held_Yes
The
assessee company was engaged in the business of dying, printing and
processing of fabric. The assessee received subsidy from Ministry of
Textiles for purchase of machinery and the same was claimed as Capital
Subsidy. The AO contended that it is revenue receipt being only profit
supplement to be considered as income. TUF scheme of Textile Ministry is
for modernization of textile industries under which the Government
gives the funds straightway to the designated bank and the bank has to
give a certificate to the effect that the Plant & Machinery was
purchased.
The Hon’ble ITAT placed reliance on judgement of Supreme Court in CIT vs. Ponni Sugars and Chemicals Ltd. 306 ITR 392 (SC)
wherein it was held that the character of subsidy received under a
scheme has to be determined with respect to the purpose for which the
subsidy is granted. The hon’ble ITAT allowed the appeal and held that
since the intention of subsidy was to enhance the technology apparatus
of the assessee by assisting in acquiring machinery under TUF Scheme,
the same cannot be considered as profit substitute of the assessee.
(Please click here for judgment)
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