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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

Girdharbhai Haribhai Gajera, Surat vs. ITO(International Taxation), Surat

In the result, additional grounds raised by the assessee is allowed

ITA 143/SRT/2019[2015-16]Status: DisposedITAT Surat22 Feb 2023AY 2015-16

Bench: Shri Pawan Singh, Jm &Dr. A.L.Saini, Am आयकर अपील सं./Ita No.143/Srt/2019 (िनधा"रणवष" / Assessment Year: (2015-16) (Physical Court Hearing) Girdharbhai Haribhai Gajera Income Tax Officer 1,Vrushal Nagar, Opp. (International Taxation), 107, 1St Vs. Ktargam Police Station, Floor, Anavil Business Centre, Katargam Road, Surat-35004 Adajan-Hazira Road, Opp. Star Bazar, Adajan, Surat-395009 "थायीलेखासं./जीआइआरसं./Pan/Gir No.: Abepg 7339 M (Assessee ) (Respondent)

For Appellant: Shri Hiren R.Vepari, C.AFor Respondent: Shri Vinod Kumar, Sr-D.R
Section 142(1)Section 143(2)Section 143(3)Section 2(14)Section 271Section 45(2)

notarized affidavit was made on 29.10.2011 declaring the conversion of agricultural land into stock-in-trade on 02.07.2011, which is nothing but a colourable device. What were sold to M/s Shanti Integrated Textile Park Limited were not agricultural lands, but capital assets as they were non-agricultural lands ... file separate Affidavit regarding such conversion and preparing such affidavit by assessee on 29/10/2011 to give effect of MoU dated 02/07/2011 is nothing but colourable device and to claim that capital assets are converted into stock in trade before obtaining NA permission is incorrect as no evidences / circumstantial evidences