Latest Blogs from SBS and Company LLP

    SBS I 19th Edition

    Re-Opening of Assessment – Challenge before Delhi High Court

    As the legislature has permitted re-assessment to be made only in accordance with the substituted provisions, it can only be done in this manner, or not at all - Delhi High Court.

    Background:

    During the outbreak of COVID-19 pandemic, in order to provide sufficient time to comply with various provisions under the Income Tax Act, 1961 (‘ITA’) and other laws, Central Government (‘CG’) has enacted Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (‘TOLA, 20’)

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    Beneficiary in Revocable Transfer vis-à-vis Resident in DTAA & Others - Bombay High Court in Abu Dhabi Investment Authority & Others

    The recent judgment of Bombay High Court in the matter of Abu Dhabi Investment Authority[1] is a judgment for many firsts. The judgment is a result of challenge of AAR[2] ruling in Abu Dhabi Investment Authority (for brevity ‘ADIA’).

    Issue:

    ADIA is a public institution owned by and subject to the supervision of Emirate of Abu Dhabi. ADIA has challenged the ruling passed by AAR, wherein the later denied inter-alia the benefit of India-UAE[3] DTAA[4] in respect of the income accruing to the investments made or proposed to be made by Green Maiden A 2013 Trust (‘Trust’), which was established by ADIA as settlor and Equity Trust (Jersey) Limited as the trustee (ETL/Trustee). ADIA has invested USD[5] 200 million in India on revocable basis through the above trust, wherein ETL acted as trustee with sole beneficiary as ADIA.

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    Rectification of GSTR-3B - Supreme Court Decision in Bharti Airtel Limited

    The recent judgment of Honourable Supreme Court in the matter of Union of India vs. Bharati Airtel Limited[1] deals with a special circumstance of rectification of Form GSTR-3B. As all of us are aware that Form GSTR-3B is a monthly/quarterly return in which the taxpayer assesses his liability and discharge the same by using the cash and credit. The matter before the Honourable Supreme Court is pertaining to the rectification of such return. Though the rectification of the said return is possible in a different methodology as proposed by Circular 26/26/2017-CT dated 29.12.17 by making changes in a different return, the respondent in the subject matter (Bharati Airtel Limited) wanted to carry such rectification in the same return, where the error has occurred. We shall proceed to examine as to how the matter was finally settled by the Honourable Supreme Court.

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    SBS Wiki E Journal November 2021

    In this edition, we bring you, Part III of various shades of draft assessment orders and issue surrounding them. In this piece, we have dealt on the issues arising of the e-assessment and faceless assessment schemes.

    The next article is on the recent judgment of Honourable Supreme Court in the matter of Bharati Airtel Limited, wherein the judgment of Delhi High Court was struck down. The Supreme Court has asked right questions which the Delhi High Court failed to ask and stated that GSTR-2A is only a facilitator and non-availability of the same cannot be used at a later point of time to swap the entries. The Supreme Court upheld the Para 4 of Circular 26/26/2017 – CT since the same is within the ambit of Section 39(9) of Central Goods and Services Tax Act, 2017. The Supreme Court has distinguished the various High Court judgments which have held that GSTR-3B is a stop-gap arrangement and not a return under Section 39 by relying on the amendment made to Section 39 and finally giving a sanctity to GSTR-3B as return.

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    SBS I 18th Edition

    Filing of Form 67 as specified in Rule 128(9) is directory in nature and provisions of Rule 128 cannot override the provisions of DTAA.

    Background:

    Section 90 of the Income Tax Act, 1961 provides that the Central Government may enter into agreement with Government any country or territory outside India to eliminate double taxation of income.

    In this regard, Article 25 of DTAA provides mechanism for elimination of double taxation by way of allowing credit of tax paid in other country against the tax payable in India (in most cases).

    In order to streamline the process of claiming of credit under DTAA, Government of India has incorporated Rule 128 into the Income Tax Rules, 1962. Rule 128 states that in order to claim foreign tax credit, assessee is required to file Form 67 on or before the due date specified for filing return of income under section 139 (1).

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