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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

25Fps Media Pvt. Ltd., Mumbai vs. ITO, Range -6(3)(1), Mumbai

In the result, the appeal filed by the assessee is hereby allowed and the appeal filed by the revenue is hereby dismissed

ITA 3085/MUM/2018[2012-13]Status: DisposedITAT Mumbai02 Mar 2022AY 2012-13

Bench: Shri Amarjit Singh, Jm & Shri Amarjit Singh, Am आयकर अपील सं/ I.T.A. No. 2798/Mum/2018 (निर्धारण वर्ा / Assessment Year:2012-13) Ito, Range-6(3)(1) बिधम/ 25Fps Media Pvt. Ltd. Room No.524, 5Th Floor, 18Th Floor, Marathon Futurex, Vs. Aayakar Bhavan, Mumbai- N. M. Joshi Marg, Lower 400020. Parel, Mumbai-400013. & आयकर अपील सं/ I.T.A. No. 3085/Mum/2018 (निर्धारण वर्ा / Assessment Year: 2012-13) बिधम/ 25Fps Media Pvt. Ltd. Ito, Range-6(3)(1) 18Th Floor, Marathon Futurex, Room No.524, 5Th Floor, Vs. N. M. Joshi Marg, Lower Aayakar Bhavan, Mumbai- Parel, Mumbai-400013. 400020. स्थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacz2076J (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) Assessee By: Shri Percy Pardiwala & Madhur Aggarwal Revenue By: Shri Achal Sharma (Dr) सुनवाई की तारीख / Date Of Hearing: 27/01/2022 घोषणा की तारीख /Date Of Pronouncement: 02/03/2022 आदेश / O R D E R Per Amarjit Singh (Jm): The Assessee As Well As Revenue Have Filed The Above Mentioned Appeals Against The Order Dated 28.02.2018 Passed By The Commissioner Of Income Tax (Appeals) -12, Mumbai [Hereinafter Referred To As The “Cit(A)”] Relevant To The A.Y. 2012-13. Ita. No.2798/Mum/2018 2. The Revenue Has Filed The Present Appeal Against The Order Dated 28.02.2018 Passed By The Commissioner Of Income Tax (Appeals) -12, Mumbai Relevant To The A.Y.2012-13. 3085/M/2018 A.Y. 2012-13 3. The Revenue Has Raised The Following Grounds: -

For Appellant: Shri Percy Pardiwala & MadhurFor Respondent: Shri Achal Sharma (DR)
Section 143(3)Section 14ASection 37Section 56(1)

addition without looking at the very nature of transfer of shares in substance i.e. the creation of holding company and subsidiary company was a colourable device adopted to evade taxes. The Ld. Representative of the revenue has argued that the transfer of share to its subsidiary is liable ... share of Zee News Ltd., by Essel Corporate Resources P Ltd (ECRPL) without consideration. The AO held that the transaction is a colourable device towards the evasion of tax, therefore, tax is leviable on the value of share in view of the provisions u/s 56(2)(viia). The assessee filed

ITO 6(3)(1), Mumbai vs. 25 Fps Media Pvt. Ltd., Mumbai

In the result, the appeal filed by the assessee is hereby allowed and the appeal filed by the revenue is hereby dismissed

ITA 2798/MUM/2018[2012-13]Status: DisposedITAT Mumbai02 Mar 2022AY 2012-13

Bench: Shri Amarjit Singh, Jm & Shri Amarjit Singh, Am आयकर अपील सं/ I.T.A. No. 2798/Mum/2018 (निर्धारण वर्ा / Assessment Year:2012-13) Ito, Range-6(3)(1) बिधम/ 25Fps Media Pvt. Ltd. Room No.524, 5Th Floor, 18Th Floor, Marathon Futurex, Vs. Aayakar Bhavan, Mumbai- N. M. Joshi Marg, Lower 400020. Parel, Mumbai-400013. & आयकर अपील सं/ I.T.A. No. 3085/Mum/2018 (निर्धारण वर्ा / Assessment Year: 2012-13) बिधम/ 25Fps Media Pvt. Ltd. Ito, Range-6(3)(1) 18Th Floor, Marathon Futurex, Room No.524, 5Th Floor, Vs. N. M. Joshi Marg, Lower Aayakar Bhavan, Mumbai- Parel, Mumbai-400013. 400020. स्थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacz2076J (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) Assessee By: Shri Percy Pardiwala & Madhur Aggarwal Revenue By: Shri Achal Sharma (Dr) सुनवाई की तारीख / Date Of Hearing: 27/01/2022 घोषणा की तारीख /Date Of Pronouncement: 02/03/2022 आदेश / O R D E R Per Amarjit Singh (Jm): The Assessee As Well As Revenue Have Filed The Above Mentioned Appeals Against The Order Dated 28.02.2018 Passed By The Commissioner Of Income Tax (Appeals) -12, Mumbai [Hereinafter Referred To As The “Cit(A)”] Relevant To The A.Y. 2012-13. Ita. No.2798/Mum/2018 2. The Revenue Has Filed The Present Appeal Against The Order Dated 28.02.2018 Passed By The Commissioner Of Income Tax (Appeals) -12, Mumbai Relevant To The A.Y.2012-13. 3085/M/2018 A.Y. 2012-13 3. The Revenue Has Raised The Following Grounds: -

For Appellant: Shri Percy Pardiwala & MadhurFor Respondent: Shri Achal Sharma (DR)
Section 143(3)Section 14ASection 37Section 56(1)

addition without looking at the very nature of transfer of shares in substance i.e. the creation of holding company and subsidiary company was a colourable device adopted to evade taxes. The Ld. Representative of the revenue has argued that the transfer of share to its subsidiary is liable ... share of Zee News Ltd., by Essel Corporate Resources P Ltd (ECRPL) without consideration. The AO held that the transaction is a colourable device towards the evasion of tax, therefore, tax is leviable on the value of share in view of the provisions u/s 56(2)(viia). The assessee filed

DCIT 9(2)(1), Mumbai vs. M/S B. Chopda Construction P. Ltd., Mumbai

In the result, the appeal of the appellant is Partly Allowed

ITA 1513/MUM/2020[2011-12]Status: DisposedITAT Mumbai22 Feb 2022AY 2011-12

Bench: Pramod Kumar, Vp & Shri Amarjit Singh, Jm आयकर अपील सं/ I.T.A. No. 1513/Mum/2020 (निर्धारण वर्ा / Assessment Year: 2011-12) Dcit-9(2)(1) बिधम/ M/S. B. Chopda Construction Room No.665A, 6Th Floor, Pvt. Ltd. Vs. Aayakar Bhavan, A-208, Sagar Tech Plaza, Churchgate, Mumbai- Sakinaka Junction, Andheri, 400020. Mumbai-400072. स्थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaccb4214G (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) Assessee By: Shri Mohan Tandon Revenue By: Shri Himanshu Sharma (Sr. Ar) सुनवाई की तारीख / Date Of Hearing: 14/12/2021 घोषणा की तारीख /Date Of Pronouncement: 22/02/2022 आदेश / O R D E R Per Amarjit Singh, Jm: The Revenue Has Filed The Present Appeal Against The Order Dated 27.12.2019 Passed By The Commissioner Of Income Tax (Appeals) -16, Mumbai [Hereinafter Referred To As The “Cit(A)”] Relevant To The A.Y.2011- 12. 2. The Revenue Has Raised The Following Grounds: - “11. Whether On The Facts & In The Circumstances Of The Case, The Ld. Cit(A) Was Justified In Restricting The Suppressed Profit To The Extent Of 12.50% Of Bogus Purchases, When The Assessee Could Not Produce Any Parties Or Evidence That The Said Goods Were Purchased A.Y.2012-13 & The Onus Of Proving Genuineness Of Purchases Was Not Discharged By The Assessee.

For Appellant: Shri Mohan TandonFor Respondent: Shri Himanshu Sharma (Sr. AR)
Section 133(6)Section 143(2)Section 147

Mathuram Agarwal v. State of Madhya Pradesh (1999) 8 SC 667 and concluded that where the transaction is not genuine but a colourable device there could be no question of tax planning. The Supreme Court in the aforesaid case after considering the aforesaid two decisions concluded as follows: "The majority ... planning may be legitimate provided it is within the framework of law" ( para-45). In the latter part of para 45, held-that colourable device cannot be a part of tax planning and it is wrong to encourage the belief that it is honourable to avoid payment