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Showing 1 to 20 of 1128 Records
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2024 (4) TMI 1128 - DELHI HIGH COURT
Retrospective cancellation of GST registration - SCN does not give any reasons for cancellation - Violation of principles of natural justice - HELD THAT:- In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria. Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer’s registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention is required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons.
In view of the above that the Petitioner does not seek to carry on business or continue the registration, the impugned order dated 28.10.2021 is modified to the limited extent that registration shall now be treated as cancelled with effect from 20.06.2020 i.e., the date when petitioner filed an application seeking cancellation of GST registration - petition disposed off.
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2024 (4) TMI 1127 - ORISSA HIGH COURT
Maintainability of appeal - appeal dismissed on the ground of non-filing of certified copy and the same has already been filed by the petitioner - requirement of proving opportunity of hearing - HELD THAT:- This Court, taking into consideration the fact the petitioner has already filed reply to the notice dated 10.05.2022 on 17.05.2022, directs that the authority may consider the same and rehear the appeal by giving opportunity of hearing to the petitioner. Consequentially, the order dated 02.06.2022 under Annexure-1 is hereby quashed. The matter is remitted to the appellate authority for rehearing of the appeal.
Petition disposed off.
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2024 (4) TMI 1126 - CESTAT CHENNAI
Classification of services - Erection, Commissioning or Installation Service or not - services of laying of optic fibre cables provided to M/s.BSNL - suppression of facts or not - Extended period of Limitation - HELD THAT:- The department has issued clarification on disputes by Board’s Circular No.123/5/2010 that have arisen with regard to works related to cables. In the table given, in para-3 at Sl.No.3, it is mentioned that the laying of electric cables is exempt from levy of service tax. Sl.No.2 states that ‘laying of cables under or alongside roads’ is exempted from levy of service tax. Sl.No.2 is not qualified with the word ‘electric cable’. The word ‘cable’ is used in general sense and will apply to telecommunications cables also. It is opined that the clarification issued by the Board would apply and that the said activity is exempted from levy of service tax.
The department themselves had a contrary view holding that the activity is not subject to levy of service tax. Further, the Tribunal in the case of CCE, LUCKNOW VERSUS M/S RAJ ELECTRIC WORKS [2017 (9) TMI 793 - CESTAT ALLAHABAD] had held that the activity of laying of opting fibre cables for M/s.BSNL is not subject to levy of service tax. The Tribunal in the said case had followed the Board’s circular and also other decisions which have categorically held that the activity is not subject to levy of service tax.
The demand of service tax cannot sustain and requires to be set aside. The issue on merits is answered in favour of the appellant.
Time Limitation - suppression of facts or not - HELD THAT:- There is no suppression of facts brought out by the Department. The appellant has accounted the entire consideration received by them in their books. The demand has been raised on the figures obtained from the records maintained by the appellant. Further the issue is interpretational in nature. In such circumstances, the demand raised invoking the extended period also cannot sustain. The show cause notice is time-barred. The appellant succeeds on limitation also.
The impugned order is set aside. The appeal is allowed.
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2024 (4) TMI 1125 - CESTAT CHENNAI
Levy of service tax - Municipality provided services / facilities while discharging sovereign functions or not - services are in the nature of fees, fine charges collected by the Municipality while discharging the functions enlisted in 12th Schedule of the Constitution or not - reverse charge mechanism - major part of the demand is under Renting of Immovable Property Services - Extended period of limitation - HELD THAT:- The Hon’ble High Court in the case of CUDDALORE MUNICIPALITY VERSUS THE JOINT COMMISSIONER OF GST & CENTRAL EXCISE, THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX AND VIRUDHACHALAM MUNICIPALITY VERSUS THE ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER OF GST AND CENTRAL EXCISE, CUDDALORE [2021 (4) TMI 500 - MADRAS HIGH COURT] had analysed the issue as to whether demand of service tax can be raised in regard to services / facilities provided by Municipality / Corporation. It was held that Municipalities (local authority) were rendering such services as sovereign function and therefore the amounts received is outside the purview of levy of service tax. In the said judgment, the Hon’ble High Court considered the liability to pay service tax for the period prior to 01.07.2012 as well as after 01.07.2012 - It was held that the Government or local authority is exempted from payment of service tax on Renting of Immovable Property Services or for other services.
The above decision was rendered by the Hon’ble High Court on 22.03.2021. However, prior to this decision, the Hon’ble Jurisdictional High Court at Madurai Bench in the case of Madurai Corporation Vs. The Commissioner of Central Excise [2020 (9) TMI 1303 - MADRAS HIGH COURT] had considered the issue of taxability of renting of immovable property and vide judgment dated 09.09.2020 held that Municipality is liable to pay service tax - In the case of Madurai Corporation, the Ld. Single Bench Judge sustained the demand mainly on the view that it was observed by the Hon’ble High Court in the batch case that the Municipality can pass on the burden of service tax to the tenant (recipient of service tax).
It is represented here that the Department has filed appeal against the decision passed by the Ld. Single Judge in the case of Cuddalore Municipality and that assessee has filed appeal against the decision passed in the case of Madurai Corporation. These appeals are pending before the Hon’ble High Court. Since, the Hon’ble High Court in the case of St. Thomas Mount Cum Pallavaram Cantonment Board [2023 (4) TMI 1024 - MADRAS HIGH COURT] has remanded the matter for considering the issue afresh, it is opined, that in the interest of justice, these matters also require to be remanded to the Adjudicating Authority to consider afresh the issue as to whether Municipality is liable to pay service tax under Renting of Immovable Property Services and other Services.
Time limitation - HELD THAT:- The assessee being a local authority, which is a wing of the Government, it cannot be said that assessee has suppressed facts with intent to evade payment of service tax. So also, there is no positive act of suppression alleged in the Show Cause Notice against these Municipalities. As the matter is remanded, the Adjudicating Authority is directed to consider the issue on limitation also.
The Department has filed appeal aggrieved by dropping or reducing the demands. In case the demand of service tax is sustainable, the Adjudicating Authority is directed to quantify after looking into the actual amounts received in respect of each services.
The appeals are allowed by way of remand to the Adjudicating Authority.
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2024 (4) TMI 1124 - CESTAT AHMEDABAD
Classification of service - works contract service or erection, commissioning and installation services - scope of the supply to the recipients of services include the materials as well - suppression of facts or not - Extended period of Limitation - HELD THAT:- There are force in the arguments of Appellant that the scope of their services also included the supply of material. The same is supported by the facts as recorded by Ld. Commissioner in Para 8(d) of the Order in Original dated 30.10.2014 wherein it is clearly coming up that the Appellant were also required to supply the materials. Therefore, the appropriate classification for the services provided by the Appellants would be “works contract services” and not “erection, commissioning and installation services”.
Reliance placed on the decision of coordinate bench at Chennai in case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2018 (9) TMI 1149 - CESTAT CHENNAI] wherein it is held that demand of service tax under the taxable category of erection, commissioning and installation only if the services are in the nature of services simpliciter.
However, as per the facts recorded by Ld. Commissioner in the present case it clear that the scope of services of the Appellants also include supply of materials and therefore, the demand of service tax under the taxable category of erection, commissioning and installation services is not sustainable in the present case. The decision of Real Value Promoters is followed in many other decisions as well.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 1123 - DELHI HIGH COURT
Cancellation of GST registration of the petitioner with retrospective effect - SCN does not give any reasons for cancellation - Violation of principles of natural justice - HELD THAT:- The Show Cause Notice and the impugned order are bereft of any details. Accordingly, the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation.
In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the taxpayer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
The impugned order and SCN cannot be sustained and are accordingly set aside - GST registration of the petitioner is restored - petition allowed.
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2024 (4) TMI 1122 - SC ORDER
Reopening of assessment - validity of order passed u/s 148A(d) - Second round of litigation - non independent application of AO's mind to the information furnished by the DDIT - As decided by HC [2023 (2) TMI 1119 - CALCUTTA HIGH COURT] only conclusion that can be arrived at is to hold that the reopening of the assessment was bad as it was based on certain alleged “potential” cash borrowings and certain alleged “possible” financial transactions - AO did not independently apply its mind to the information furnished by the DDIT which he is required to do while exercising the power to reopen an assessment - entire reopening proceedings commencing from issuance of the notice u/s 148A(b) and culminating in the order u/s 148A(d) is a clear abuse of the process of law.
HELD THAT:- There is a gross delay of 399 days in filing this special leave petition. The explanation given for condonation of the delay is not satisfactory or sufficient in law to condone the same.
Hence, the application seeking condonation of delay is dismissed. Special leave petition also stands dismissed.
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2024 (4) TMI 1121 - SC ORDER
Legality of revision of order of Tribunal u/s 254 on ground of retrospective overruling - Penalty imposed u/s 271(1) if returned income is a loss - Revenue contended that order of Tribunal had been based entirely on the decision of the Supreme Court decision and the latter decision had been subsequently overruled by a larger Bench of the Supreme Court, thus there was a mistake apparent on the face of the record -
As decided by HC [2012 (6) TMI 39 - DELHI HIGH COURT] decision larger Bench of the Supreme Court has to be regarded as the law as it existed when the order was passed by Tribunal, there is a clear mistake apparent from the record. Only limitation for correcting the mistake is that imposed by the provisions of Section 254(2) itself and that is only with respect to time.
HELD THAT:- In continuation of the order M/S. LAKSHMI SUGAR MILLS CO. LTD. & ANR. VERSUS COMMR. OF I.T. CIRCLE 4 (1) & ANR. [2024 (4) TMI 1083 - SC ORDER] it is fairly stated by petitioners that the order DCIT, CIRCLE 4 (1) , NEW DELHI VERSUS M/S. LAKSHMI SUGAR MILLS CO. LTD. [2009 (4) TMI 1064 - ITAT DELHI] passed by Tribunal has not been challenged by the petitioners as it was not in their knowledge as the same was an ex-parte order, the petitioners will join the proceedings, and that they may be permitted to raise all the contentions before the Prescribed Authority. Special Leave Petition is disposed of with liberty to the petitioners to raise all the legal and factual contentions before the Prescribed Authority to whom the matter has been remitted by the Tribunal.
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2024 (4) TMI 1120 - SC ORDER
Nature of expenses - re-characterizing revenue expenses incurred by as capital expenditure by AO - correct approach in law and on the facts adopted or not? - as per AO assessee had made no effort to earn income - as per ITAT AO’s approach, was that the respondent/assessee was not earning revenue, was completely misdirected - as per HC [2023 (10) TMI 329 - DELHI HIGH COURT] proposition put forth by the AO that since there is no income chargeable under Section 28 of the Act, therefore, no expenses could be claimed by an assessee under Sections 30 to 37 of the Act, in our view, is completely unsustainable.
HELD THAT:- There is a delay of 106 days in preferring the present special leave petition.
Even on merits, however, we are not inclined to interfere with the impugned judgment as it is accepted that business had commenced. Hence, the special leave petition is dismissed.
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2024 (4) TMI 1119 - SC ORDER
Validity of reopening of assessment - period of limitation - date of notice or date of dispatch which is required to be looked into - As decided by HC [2023 (11) TMI 1255 - RAJASTHAN HIGH COURT] in the absence of there being any factual foundation, the argument on issue of the limitation, does not have any substance - HELD THAT:- We are not inclined to interfere in the matter.
The special leave petition is hence, dismissed. Pending applications, if any, shall also stand disposed of.
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2024 (4) TMI 1118 - ITAT PUNE
Credit for foreign tax paid - denial of claim as form No.67 was not filed within the due date for filing of the return of income as specified u/s 139(1) - Directory v/s mandatory provisions - appellant had salary income from USA as well as India - HELD THAT:- Admittedly, in the present case, Form No.67 was not filed within the due date for filing of the return of income under the provisions of section 139(1), but Form No.67 was filed on 26.03.2021. The CPC, Bangalore had processed the return of income on 06.08.2021 which means that Form No.67 was very much available with the CPC, Bangalore.
CPC, Bangalore cannot deny the claim for credit for foreign tax paid merely because Form No.67 was not filed within the due date specified for filing the return of income under the provisions of section 139(1) of the Act, as it is merely a directory. Therefore, we direct the CPC, Bangalore to amend the Intimation u/s 143(1) of the Act for taking into consideration the Form No.67 filed by the appellant. Accordingly, the ground of appeal filed by the assessee stands partly allowed.
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2024 (4) TMI 1117 - ITAT MUMBAI
Estimation of income - bogus purchases - receipt of the information that the assessee is a beneficiary of accommodation entries of bogus purchases from entities controlled by an accommodation entry provider - HELD THAT:- As we find that in assessee's own case for assessment year 2012-13 [2024 (3) TMI 1012 - ITAT MUMBAI] coordinate bench has restricted the addition to the extent of 5%, therefore, unless there is an application for recall of that order, we are duty-bound to state that 5% of the bogus purchases are already determined as income of the assessee. Decided against revenue
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2024 (4) TMI 1116 - ITAT JODHPUR
Unexplained money u/s 69A - deposits in bank account during the demonetization period - joint bank account of husband wife - Family settlement - assessee and his wife both are Senior Citizen, Retired Govt. Employee and pensioner and filed the cash flow statements of last five years - HELD THAT:- Assessee has filed the day wise cash withdrawals and deposits. The lower authorities have only doubted the cash flow statements but could not disproved with any contrary evidences about the withdrawal of cash and its source. The assessee has also filed a family settlement of her wife family, where she got Rs. 3,61,000/- which is also available with the assessee and the lower authorities has discarded or disbelieved without examining and without bringing any adverse evidence. The assessee has also filed the affidavit of his wife, wherein she clearly stated that the bank accounts were jointly owned and she had deposited the cash of Rs. 15,59,000/- in these bank accounts, this affidavit has also been remained uncontroverted. It is settled law that the contents of an affidavit should be read correct and full unless not controverted
Considering the reconciliation and cash flow statement filed by the assessee along with family settlement deed and affidavit of assessee’s wife, wherein she owned responded of having deposited of cash out of her owned source and saving., Therefore, without controverting the fact stated of affidavit by the wife of the assessee, the addition made by the lower authorities even for an amount of Rs. 12,87,100/-is also not sustainable in the hands of the assessee and therefore, the same is directed to be deleted. Ground raised by the assessee is allowed.
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2024 (4) TMI 1115 - ITAT DELHI
Penalty proceedings u/s 270A - Applicable rate of penalty - underreporting of income or misreporting the income - substantial difference in the rate of penalty for under-reporting and misreporting of income - contention of the assessee is that the AO has throughout in the notice for imposing the penalty stated about under-reporting of income and also in the impugned order, but while imposing penalty, he invoked the provision related to the misreporting of income - HELD THAT:- The assessee was called upon to explain about under-reporting of income. But while imposing the penalty u/s 270A of the Act, the AO imposed penalty @ 200% which falls under clause (8) of section 270A of the Act.
The Co-ordinate Bench of the Tribunal in the case of Alrameez Construction (P.) Ltd. [2023 (8) TMI 371 - ITAT MUMBAI] held that no penalty can be imposed in this case, as there is no misreporting is there by assessee for the purposes of section 270A. Even addition u/s. 43CA was not sustainable in view of Jai balaji Business Corporation (P.) Ltd. [2023 (2) TMI 421 - ITAT PUNE] - But as assessee before us is for penalty issue only and matter of quantum issue is not before us that are of no use to assessee in present appeal. In the result grounds of appeal raised by assessee is allowed.
Therefore AO ought to have restricted the penalty to the extent of 50% which is leviable for under-reporting of the income. Since it is the case of the AO that the assessee had under reported his income and AO nowhere states that clause (8) of section 270A of the Act is applicable. Appeal of the assessee is partly allowed.
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2024 (4) TMI 1114 - ITAT SURAT
Exemption u/s 11 - The NFAC/Ld.CIT(A) allowed the deduction - assessee has not e-filed or not filed return within due date - asssessee's return of income filed after due date u/s 139(1) BUT filed its Form 10B within due date of filing of such audit report - HELD THAT:- There is no dispute about filing of Form-10AB, which is filed with the time prescribed. The objection of Assessing Officer objected only on filing return of income after due date of filing return of income prescribed under section 139(1). We find that in Case Tulsidas Gopalji Charitable and Chaleshwar Temple Trust [1993 (9) TMI 75 - BOMBAY HIGH COURT] held that on a careful reading of the provisions of sub-sections (1) and (4) of Section 139 lead to an inevitable conclusion that a return made within the time specified in sub-section (4) has to be considered as having been made within the time prescribed in sub-section (1) or subsection (2) of Section 139.
We further find that CBDT in its Circular No.6/2020 dated 19.02.2020 and Circular No.173/193/2019-ITA-I dated 23.04.2019 clarified that for availing benefit of Section 11, the registered under section 12A shall file its return of income within time allowed under section 139.
NFAC/Ld.CIT(A) specifically held that Section 139 includes belated return under section 139(4) and CBDT has directed that demand raised on this issue are to be rectified. We find that ld CIT(A) by following the mandates of aforesaid circulars allowed relief to the assessee. on independent examination of facts of the case, we do not find any infirmity in the order of ld CIT(A), which we affirm. Appeal of the Revenue is dismissed.
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2024 (4) TMI 1113 - ITAT PUNE
Penalty u/s. 270A - Under-reporting of income / Mis-reporting - taxpayer herein has been found not to have disclosed it’s interest income/ interest on income tax refunds during the course of quantum assessment - HELD THAT:- We find from the assessee’s corresponding audited books [including P & L A/c] read with details of indirect incomes as well as the ledger(s) that it had duly included the foregoing interest in the indirect income head duly forming part of the computation submitted in quantum proceedings.
Revenue at this stage vehemently argued that the lower authorities may be directed to verify this alleged clinching fact. No reason to accept the Revenue’s remand prayer once it is found that all these assessee’s details duly form part of the case file all along right from the course of assessment to the impugned penalty proceedings.
Also in Reliance Petro Products [2010 (3) TMI 80 - SUPREME COURT] that quantum and penalty are parallel proceedings wherein any addition made in the course of former does not ipso facto attract latter provision. We accordingly find it a fit case to delete the impugned penalty in very terms. Assessee’s appeal is allowed.
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2024 (4) TMI 1112 - ITAT PUNE
Eligibility of exemption u/s 80P(2)(a)(i) or u/s 80P(2)(d) - interest income earned from cooperative banks - cleavage of judicial opinion among several High Courts on the issue of eligibility - HELD THAT:- Referring to various contradictory judgments as following the case of Ratnatray Gramin Bigar Sheti Sah. Pat Sanstha Maryadit [2018 (12) TMI 1926 - ITAT PUNE] taken view in favour of the assessee following the judgment of Tumkur Merchants Souharda Credit Cooperative Ltd [2015 (2) TMI 995 - KARNATAKA HIGH COURT].the interest income earned on fixed deposits with cooperative bank/scheduled bank partakes character of the business income, which is eligible for deduction u/s 80P(2)(a)(i) of the Act. Therefore, direct the Assessing Officer to allow the exemption u/s. 80P(2)(a)(i) and section 80P(2)(d) of the Act. Decided in favour of assessee.
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2024 (4) TMI 1111 - ITAT JAIPUR
Deduction claimed u/s. 80P(2)(a)(i) - claim denied in the intimation u/s. 143(1) stating that the same was not correctly made in the ITR filed - HELD THAT:- Considering the object of the society being lending money to its member the deduction is correctly claimed by the assessee in his return of income filed and so the reasons advanced by the revenue on this part has no force and are purely based on surmises and conjecture.
Status showing as AOP and not mentioned as cooperative society - As we have gone through the definition of person given in section 2(31) of the Act wherein there is no separate status for co-operative society to mentioned and therefore, the mentioned of the status as AOP also does not disqualify the assessee to claim the deduction. Therefore, denial of the deduction on that second reasons is also not correct.
We get the support of our view from the decision of Shree Datta Prasad Sahakari Patsanstha Ltd [2021 (9) TMI 419 - ITAT MUMBAI] wherein the bench has dealt the similar issue and allowed the deduction even though the same was not claimed by the assessee in that return of income filed in that case. Whereas, the bench has noted that in this case the assessee has claimed the deduction and therefore, merely without specifying how the claim of the assessee is not correctly claimed and the same cannot be denied in the intimation u/s. 143(1) of the Act. In the light of these set of facts the ld. AO is directed to allow the claim of the assessee as claimed in the ITR u/s. 80P(2)(a)(i) - Appeal of the assessee is allowed.
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2024 (4) TMI 1110 - ITAT CHENNAI
LTCG - year of assessment - deduction u/s 54 - assessee submitted that out of 10 flats allotted to the assessee, two flats were combined into one contiguous unit - AO faulted the working of the assessee on the ground that entire costs attributable to all the flats allotted to the assessee were considered by the assessee towards the cost of the new asset meant for deduction u/s 54 - additional evidences submitted
HELD THAT:- Assessee himself has offered gains for the first time in this year only. In fact, the gains have been offered in this year only and not in any other year. Nothing has been shown to us that these gains have ever been offered either in AY 2013-14 or in AY 2015-16 or in any other year. The assessee cannot take contrary stands. At the fag-end of assessment proceedings, the assessee filed a letter stating that the gains would not be chargeable in this year but the same would be chargeable either in the year of entering into joint venture agreement and during the year when the possession of the new flats was given by the builder to the assessee. However, it is nowhere been shown to us that the assessee himself has acted on these arguments and offered capital gains in any other assessment years. The assessee is only making contrary stand. Accepting the same would mean that the revenue would never be able to tax the impugned capital gains which could not be permitted. Therefore, we are unable to accept these arguments.
Secondly, it is crystal clear that the case was selected for ‘limited scrutiny’ to examine the issue of deduction claimed by the assessee under the head capital gains as offered by the assessee in the return of income. The year of taxability was not within the scope of ‘limited scrutiny’ and the aforesaid question could not have been even gone into by Ld. AO. All these arguments as well as additional evidences as urged by Ld. AR could not find our acceptance and hence, rejected. The Ld. CIT(A), in our considered opinion, has clinched the issue in correct perspective.
Computation of cost of land - As we find that the assessee has parted with only a part of the land. Therefore, he is not correct in considering entire cost of land while computing the gains. Only proportionate cost could be allowed to the assessee. We confirm the stand of Ld.AO to that extent.
FMV determination - Cost of building - AO has computed Fair Market Value (FMV) of the building as on 01-04-1981 by applying PWD rates and arrived at cost of building as Rs. 16.67 Lacs. Considering the plea of the assessee that building was made of superior construction, Ld. AO adopted cost of building as on 01-04-1981 to be Rs. 20 Lacs. Since the building was 16 years old as on 01-04-1981, taking the life of building to be 80 years and salvage value of 10%, Ld. AO depreciated the cost and revised the cost of building as on 01-04-1981 to Rs. 16.40 Lacs. We substantially concur with all these findings of Ld. AO except for the fact that when FMV of the building has been considered as on 01-04-1981, there is no further requirement to depreciate the same. Therefore, we direct Ld. AO to adopt FMV of the building as on 01-04-1981 as Rs. 20 Lacs and re-compute the gains.
Deduction u/s 54 assessee has attributed cash outflow, service tax component and alteration cost of all the flats to two flats (which has been joined together) against which this deduction has been claimed.The same is not correct methodology. The working made by Ld. AO, could not be faulted with. We concur with the same. Consequently, ground Nos. I to K stand dismissed except to the extent that FMV of the building as on 01-04-1981 would be taken as Rs. 20 Lacs. The Ld. AO is directed to re-compute the gains.
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2024 (4) TMI 1109 - ITAT CHENNAI
Taxation on gains arising out of compulsory acquisitions - Admission of Additional Grounds - LTCG in respect of property acquired under the land acquisition act - land was compulsorily acquired for Highways projects by The Land Acquisition Officer and District Revenue Officer, Tirupur - application of provisions of RFCTLARR Act - Effect of ACT's operation as ceased
DR stated that the award has been given u/s 34/2002 of Tamil Nadu Highways Act, 2001 and not u/s 96 of RFCTLARR Act, 2013 and therefore the assessee is not entitled for exemption - HELD THAT:- Upon perusal of award document as placed it could be seen that the compensation has been awarded by competent authority to the eligible persons on 27.11.2013 u/s 34/2002 of Tamil Nadu Highways Act, 2001 and the award has been received by the assessee on 02.12.2013. RCTLARR, Act, 2013 has been notified only with effect from 01.01.2014. The provisions of Sec. 96 of this Act provide that no income tax or stamp duty shall be levied on any award or agreement made under this Act. Subsequently, the Tamilnadu Government had amended the RFCTLARR Act, 2013 by inserting Sec. 105A vide RFCTLARR (Tamilnadu Amendment Act), Act, 2015 which placed these State land acquisition acts in a newly created fifth schedule on par with the Central Enactment, which are listed in the fourth schedule and have been exempted from the purview of RFCTLARR Act, 2013 except with respect to compensation, rehabilitation and resettlement
Tamilnadu State Assembly has enacted Tamilnadu Land Acquisition Law (Revival of Operation, Amendment and Validation) Act, 2019 on 15.12.2019 in order to revive the operation of the Tamil Nadu Highways Act, 2001 which had ceased with effect from 27.09.2013 to exist due to enactment of RFCTLARR Act, 2013 as they were guided by Land Acquisition Act, 1894. As per Sec. 1(2) of TNLAL (ROAV) Act, 2019, aforementioned act has been given retrospective effect from 26.09.2013. As per Sec. 10 of TNLAL (ROAV) Act, 2019, compensation needs to be determined by the RFCTLARR Act, 2013 when the land is acquired under the Tamil Nadu Highways Act, 2001.
RCTLARR, Act, 2013 has been notified only with effect from 01.01.2014. The provisions of Sec. 96 of this Act provide that no income tax or stamp duty shall be levied on any award or agreement made under this Act. Subsequently, the Tamilnadu Government had amended the RFCTLARR Act, 2013 by inserting Sec. 105A vide RFCTLARR (Tamilnadu Amendment Act), Act, 2015 which placed these State land acquisition acts in a newly created fifth schedule on par with the Central Enactment, which are listed in the fourth schedule and have been exempted from the purview of RFCTLARR Act, 2013 except with respect to compensation, rehabilitation and resettlement.
Only provisions relating to compensation, rehabilitation and resettlement has been made applicable to the State Act and therefore, the provisions of Sec. 10 have limited applicability. The provisions of Sec. 11 specifically exclude the application of provisions of RFCTLARR Act. Undisputedly, the compensation has been received by the assessee is under a state act and not under RFCTLARR Act.
Nothing has been shown that the benefit of RFCTLARR Act has ever been extended to the State Government by any notification, directly or impliedly.
As held in the case of Jagdish Arora vs. ITO [2021 (6) TMI 459 - ITAT AGRA] the exemption is required to be specifically granted by the statute and it cannot be inferred to be drawn. As the date of award of compensation as well as date of compensation received by the assessee fall before 01.01.2014 i.e., the date on which RFCTLARR Act came into effect. Therefore, no such benefit as averred by Ld. AR could be granted to the assessee. Accordingly, the additional grounds as urged by Ld. AR stand dismissed.
Disallowance of excess indexed cost of acquisition claimed by the appellant - We concur with the stand of Ld. AO that the assessee could not adopt 50C value in place of actual cost of acquisition. Similarly, the provisions of Sec. 43CA or Sec. 56(2)(viib) do not render any aid to the case of the assessee to compute cost of acquisition.
So far as the cost of improvement is concerned, we find that the same has been denied to the assessee since the assessee could not conclusively establish the same. The work order as well as work bill was deficient, though the payment was through banking channels and due TDS was deducted. Therefore, we deem it fit to restore the issue of cost of improvement to the file of Ld. AO with a direction to the assessee to substantiate its claim. The grounds, on merits, stand partly allowed.
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