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II. Useful Case Laws:
1. Qualcomm Incorporated Vs. ADIT, W.P.(C) 7959/2010, Judgment delivered on: 29.08.2012, High court of Delhi
Issue:
Whether the notice issued u/s 148 on the ground that the assessee had not fully and truly disclosed the facts that assessee has a permanent establishment (PE) in India was valid?
Held:
We find that not only is there a change of opinion but also the re-opening is barred by limitation in as much as the condition that the escapement of income must have resulted from the failure on the part of the petitioner to fully and truly disclose all material facts, has not been satisfied. The impugned order dated 27.10.2010 merely glosses over the objections raised by the petitioner with regard to limitation. As we have already observed above, there is no finding in the order dated 27.10.2010 that there was a failure on the part of the petitioner to fully and truly disclose all material facts particularly in connection with the issue of the petitioner having a permanent establishment in India. Consequently the condition stipulated in the proviso to Section 147 is not satisfied and, therefore, the notice dated 30.03.2010, being admittedly beyond four years from the end of the relevant assessment year (i.e., 2003-04), is barred by limitation.
(Please click here for judgment)
2. Ashok Syal Vs. CIT, ITA No. 566 of 2005, Date of decision: 04.05.2012, High court of Punjab & Haryana
Issue:
Whether the benefit of Section 54 available on the ground that the residential house of the assessee was not residential in nature due to lack of amenities when the rental income of the residential unit has been taxed as income from house property in the preceding years?
Held:
The term “house” has not been given any statutory definition and, thus, has to be assigned meaning as understood in common parlance. As per dictionary, it means abode, a dwelling place or building for human habitation. A building, in order to be habitable by a human being, is ordinarily required to have minimum facilities of washroom, kitchen, electricity, sewerage etc. The authorities had come to the conclusion that only one room had been built with bricks and mud. There were no amenities like boundary wall, kitchen, toilet, electricity, water and sewerage connection etc. Further, the residential plot was situated in Janta Enclave, a colony approved by PUDA. As per Bye-laws of PUDA, no construction could be made without getting the map and drawings approved from PUDA which had not been done. Still further no source of investment had been established. Accordingly, it is held that the property was not a house and the assessee was not entitled to the benefit under Section 54 of the Act.
(Please click here for judgment)
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