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“colourable device”

Judicial DoctrinesMcDowellMcDowell721 judgments

The decision most relied on for colourable device is Sumati Dayal v. CIT (214 ITR 801), cited in 1,967 judgments on BharatTax.

Leading authorities on colourable device

Sumati Dayal v. CIT
214 ITR 801 · 1995 · Supreme Court
1,967
citing judgments

The Revenue is entitled to look behind the apparent form of a transaction to discover its true nature, applying the test of human probabilities and surrounding circumstances. If transactions defy logic or are unnatural, they can be treated as bogus, even if supported by some documentation, especially in cases of cash credits or unexplained investments.

McDowell & Co. Ltd. v. CTO
154 ITR 148 · 1985 · Supreme Court
741
citing judgments

The Supreme Court held that while legitimate tax planning is permissible, transactions structured as a "colourable device" or "subterfuge" solely to avoid tax are impermissible. It mandates a judicial shift to look beyond the form to the substance of a transaction, allowing the lifting of the corporate veil in tax evasion arrangements.

Union of India v. Azadi Bachao Andolan
263 ITR 706 · 2003 · Supreme Court
691
citing judgments

A citizen is free to carry on business within the law, and mere tax planning without a motive to evade taxes through colorable devices is not frowned upon. The liability to taxation, for the purpose of tax treaty application, is a legal situation, not the fiscal fact of actual payment.

Sanjay Bimalchand Jain v. PCIT-1, Nagpur
89 Taxmann.com 196 · 2018 · High Court
251
citing judgments

The exemption for long-term capital gains on share transactions is unavailable if the assessee fails to discharge the onus of proving the genuineness of gains arising from dubious share transactions designed to convert unaccounted income into tax-exempt capital gains. Courts will uphold an assessment based on the Revenue's evidence of price rigging or penny stock manipulation if the assessee cannot provide cogent evidence for the abnormal rise in share value.

CIT v. Jamnadevi Agarwal
328 ITR 656 · 2010 · High Court
230
citing judgments

When faced with allegations of bogus long-term capital gains from penny stocks, the Assessing Officer must discharge the onus of proving that the assessee's transactions were not genuine. The assessee can rely on the principle of preponderance of probability, and the Revenue must present substantial evidence to establish that the transactions were a colourable device or that the assessee was an entry operator.

Vodafone International Holdings BV v. Union of India
6 SCC 613 · 2012 · Supreme Court
216
citing judgments

Tax planning is legitimate only if it is within the framework of law. Colourable devices cannot be part of tax planning, and it is wrong to encourage avoiding tax through dubious methods.

CIT v. George Williamson (Assam) Ltd.
284 ITR 619 · 2006 · High Court
111
citing judgments

An assessee may manage tax affairs to attract lower tax as permitted by law, and a genuine sale and leaseback transaction that provides substantial benefit is not a colourable device for tax avoidance.

CIT v. Smt. Jasvinder Kaur
357 ITR 638 · 2013 · Reported
91
citing judgments

The benefit of Section 10(38) for long-term capital gains is not available when transactions in penny stocks are found to be part of a scheme involving price manipulation or accommodation entries, indicating the gains are not genuine and lack actual investment.

Judgments citing colourable device

Shama Ajay Patel, Ahmedabad vs. The CIT(It & Tp), Ahmedabad

The appeal of the assessee is allowed

ITA 132/AHD/2023[2017-18]Status: DisposedITAT Ahmedabad26 Apr 2024AY 2017-18

Bench: Mrs. Annapurna Gupta & Shri T.R. Senthil Kumarिनधा"रण वष"/Assessment Year: 2017-18 Shama Ajay Patel, Vs. 2, Chandroday Society, The Cit(It & Tp), Opp. Golden Triangle, Sp Ahmedabad Stadium Road, Navjivan Post, Ahmedabad-380014 Pan : Alxpp 5273 E अपीलाथ" अपीलाथ"/ (Appellant) अपीलाथ" अपीलाथ" "" "" यथ" "" "" यथ" यथ"/ (Respondent) यथ" Assessee By : Shri Sunil Talati, Ar Revenue By : Dr. Darsi Suman Ratnam, Cit-Dr सुनवाई क" तारीख/Date Of Hearing : 01.02.2024 घोषणा क" तारीख /Date Of Pronouncement: 26.04.2024 आदेश आदेश/O R D E R आदेश आदेश Per Annapurna Gupta: The Present Appeal Filed By The Assessee Is Directed Against The Order Passed By The Learned Commissioner Of Income-Tax (It & Tp), Ahmedabad [Hereinafter Referred To As Ld. "Cit(It & Tp)" For Short] Dated 08.02.2023, In Exercise Of His Revisionary Powers Under Section 263 Of The Income-Tax Act, 1961 [Hereinafter Referred To As “The Act”], For The Assessment Year (Ay) 2017-18. 2. The Grounds Raised By The Assessee Challenging The Impugned Order Of The Ld. Cit (It & Tp) Reads As Under:- “1. The Ld. Cit Has Erred In Passing Order U/S 263 Without Jurisdiction & Appropriate Powers Available Under The Act. It Is Submitted That The Order Passed U/S. 263 Is Bad In Law As A.O. Has Neither Committed Any Error Nor It Is Prejudicial To The Interest Of Revenue. It Be Held Now.

For Appellant: Shri Sunil Talati, ARFor Respondent: Dr. Darsi Suman Ratnam, CIT-DR
Section 132Section 147Section 263

gain of Rs.51,16,561.25. The information clearly established that by following a set modus operandi, the assessee had obtained bogus capital gain through colourable devices. It is prima facie seen that the assessee has claimed to have earned capital gain in order to route her unaccounted money. However, despite ... case of McDowell & Co. Vs. CTO (1985) 154 ITR 148 (SC) has given a strong verdict against any such arrangements by stating that "colourable devices cannot be a part of tax planning and it is wrong to encourage or entertain the belief that it 7 Shama Ajay Patel

Shri Mahendrakumar H. Adhvaryu, Ahmedabad vs. The ITO, Ward-3(3)(3), Ahmedabad

The appeal of the assessee is allowed

ITA 1814/AHD/2019[2016-17]Status: DisposedITAT Ahmedabad26 Apr 2024AY 2016-17

Bench: Mrs. Annapurna Gupta & Shri T.R. Senthil Kumarिनधा"रण वष"/Assessment Year: 2016-17 Vs. Mahendrakumar H. Adhvaryu, Income Tax Officer, A-8, Classic Palace, Talav Gate, Ward-3(3)(3), Bodakdev, Ahmedabad-380054 Ahmedabad Pan : Aezpa 8877 Q अपीलाथ" अपीलाथ"/ (Appellant) अपीलाथ" अपीलाथ" "" "" यथ" "" "" यथ" यथ"/ (Respondent) यथ" Assessee By : Shri Tushar Hemani, Sr. Advocate & Shri Parimalsinh B. Parmar, Ar Revenue By : Shri Anurag Chandra, Sr Dr सुनवाई क" तारीख/Date Of Hearing : 01.02.2024 घोषणा क" तारीख /Date Of Pronouncement: 26.04.2024 आदेश/O R D E R आदेश आदेश आदेश Per Annapurna Gupta: Present Appeal Has Been Filed By The Assessee Against The Order Passed By The Ld. Commissioner Of Income Tax (Appeals)-3, Ahmedabad [Hereinafter Referred To As "Ld. Cit(A)” For Short] Dated 28.08.2019, Under Section 250(6) Of The Income Tax Act, 1961 [Hereinafter Referred To As “The Act”], Pertaining To The Assessment Year (Ay) 2016-17. 2. The Grounds Raised Are As Under:- “1. The Learned Cit(A) Has Erred In Law & On Facts In Not Giving A Reasonable Opportunity Of Hearing To The Appellant Which Is In Violation Of The Principles Of Natural Justice. 2. The Learned Cit(A) Has Erred In Law & On Facts In Stepping Into The Shoes Of The Appellant To Confirm The Additions. 3. The Learned Cit(A) Has Erred In Law & On Facts In Confirming Addition Of Cash In Hand Of Rs.62,76,216/- U/S 68 Of The Act.

For Appellant: Shri Tushar Hemani, Sr. Advocate &For Respondent: Shri Anurag Chandra, Sr DR
Section 234ASection 250(6)Section 271(1)(c)Section 68

Assessing Officer held that the assessee had failed to prove the genuineness of the activities and that it was only a colourable device for generating cash or entering his unaccounted income. Therefore, based on this finding, he treated the cash balance outstanding as at the end of the year ... that its activities of carrying out the wholesale business of fruits and earning income from agricultural activities was found to be bogus and colourable device; but the fact of the matter is that the closing balance of the cash was explained by the assessee as attributable not only