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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

ITO-23(3)(6), Mumbai vs. Swarnsarita Jewellers, Mumbai

In the result, the appeal of the revenue is dismissed

ITA 1420/MUM/2023[2017-18]Status: DisposedITAT Mumbai23 Aug 2023AY 2017-18

Bench: Shri Aby T. Varkey, Jm & Shri Amarjit Singh, Am आयकर अपील सं/ I.T.A. No.1420/Mum/2023 (निर्धारण वर्ा / Assessment Years: 2017-18) Ito-23(3)(6) बिधम/ Swarnsarita Jewellers Room No. 608, Earnest 1/E, Ruby Chamber, Vs. House, Nariman Point, 40/42, Dhanji Street, Mumbai-400021. Zaveri Bazar, Mumbai- 400003. स्थधयी लेखध सं./जीआइआर सं./Pan/Gir No. : Abyfs2206F (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee By: Shri Suchek Anchaliya Shri Tushar Nagori Revenue By: Shri Suresh D. Gaikwad (Sr. Ar) सुनवाई की तारीख / Date Of Hearing: 13/07/2023 घोषणा की तारीख /Date Of Pronouncement: 23/08/2023 आदेश / O R D E R Per Aby T. Varkey, Jm: This Is An Appeal Preferred By The Revenue Against The Order Of The Ld. Commissioner Of Income Tax (Appeals)/Nfac, Mumbai Dated 27.02.2023 For The Assessment Year 2017-18. 2. The Sole Grievance Of The Revenue In This Appeal Is Against The Action Of The Ld. Cit(A) Deleting The Addition Of Rs.98 Lakhs Made By The Assessing Officer (Hereinafter “The Ao”) U/S 68 Of The Income Tax Act, 1961 (Hereinafter “The Act”). 3. Brief Facts As Noted By The Ao Is That The Assessee Is Engaged In The Business Of Trading In Gold & Diamond Jewellery & Precious Stones. For Ay 2017-18 The Assessee Had Filed Its Return Of Income For Ay. 2017-18 Declaring Total Income Of Rs.15,73,840/-. The Ao Observed That, Search Action Was Conducted In The Case Of One, M/S. Raksha Bullion On 13.11.2016, In The Course Of Which Cash Of Rs.2.50

For Appellant: Shri Suchek AnchaliyaFor Respondent: Shri Suresh D. Gaikwad (Sr. AR)
Section 132(4)Section 68

therefore, the purchases & sales were shown as artificial trade to bring in unaccounted monies into the books of accounts and therefore was a colourable device 4. After making the above observations, the AO however noted to have ultimately accepted the book results, sales of Rs.4