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2023 (6) TMI 128
Grant of approval for 12AB - No effective opportunity to refute the rejection given - denial of natural justice - HELD THAT:- CIT(E) without further opportunity to the appellant rejected the application in violation of principle of natural justice as commanded by proviso to section 12AA(1)(b)(ii) of the Act, thus action of the Ld. CIT(E) suffered from sufficiency of reasonable opportunity to the appellant to refute the rejection vis-à-vis to comply with the requirements sought. Opportunity of being heard should be real, reasonable and effective and same should not be empty formalities, it should not be a paper opportunity. The doctrine of natural justice is a facet of fair play in action and no person shall be saddled with a liability without being heard. Remand the matter back to the file of Ld. CIT(E) for according reasonable & effective opportunity to refute the rejection. Appeal allowed for statistical purposes.
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2023 (6) TMI 127
Computation of capital gain on transfer of Plot - Adoption of certain amount as Cost of Acquisition - HELD THAT:- On an overview, it can be seen that there are basically two transfer transactions of the assessee, first, the transfer by compulsory acquisition of land by the Government of Maharashtra and the, second, of the transfer of plots to M/s. Shriram Builders & Developers, which were allotted to the assessee in lieu of the compulsory acquisition. In a nutshell, the assessee was allotted the two plots as quid pro quo for the compulsory acquisition of his land after paying back Rs. Y. In that view of the matter, the fair market value of these two plots minus Rs. Y will constitute full value of consideration in the first transaction of transfer of agricultural land by compulsorily acquisition. AO, has observed that the first transac....... + More
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2023 (6) TMI 126
Additions on account of sundry creditors - notices being issued to companies had failed to respond and gave confirmation of the outstanding credits - CIT-A deleted the addition - HELD THAT:- The order of ld. CIT(A) has showed that additional evidence was admitted and remand report was called from Ld. AO wherein no adverse comments was made with regard to reconciliation of account of STC, MMTC and PEC was given. Further the matter of fact is that all these three enterprises are public sector undertakings. Thus, the opinion of Ld. CIT(A) based upon the evidence before it and the aforesaid fact of the parties being Public Sector Undertakings to delete the additions on account of sundry creditors requires no interference. The appeal of revenue is dismissed.
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2023 (6) TMI 125
Revision u/s 263 - allowability of the claim of deduction either u/s.80P(2)(a)(i) or u/s.80P(2)(d) - PCIT has held the assessment order to be erroneous and prejudicial to the interest of the Revenue only on the ground that the claim of deduction u/s.80P on the interest income was not in order - HELD THAT:- As observed that though co-operative banks, other than primary agricultural credit society or a primary co-operative agricultural and rural development bank, are not eligible for deduction pursuant to insertion of section 80P(4) w.e.f. 1.4.2007, but this provision does not dent the otherwise eligibility u/s 80P(2)(d) of a co-operative society on interest income on investments/deposits parked with a co-operative bank, which is a registered co-operative society as per section 2(19) of the Act, defining co-operative society to mean a co-op....... + More
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2023 (6) TMI 124
Assessee in default u/s 201(1) on non-payment of TDS - non deposit of TDS deducted to the account of the Central Government - assessee pleaded that in view of the second proviso to section 201(1) of the Act, the assessee cannot be treated as an ‘assessee in default’ - CIT(A) observed that the second proviso to section 201(1) was introduced in the statute only w.e.f. 01.07.2012 and, hence, the said certificate filed by the assessee in Form No.26A from the Chartered Accountant of Payee cannot be used for the year under consideration as a shelter for not to be treated as an ‘assessee in default. HELD THAT:- The second proviso to section 201(1) of the Act, though introduced w.e.f. 01.07.2012 have been held to be retrospective in operation by the decision of Ansal Landmark Township Pvt. Ltd. [2015 (9) TMI 79 - DELHI HIGH COUR....... + More
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2023 (6) TMI 123
Suppression of income - Difference between service tax return and the revenue - as per books of accounts of the Assessee wherein reversal entry has been passed - case of the Assessee that since audit was initiated at the end of 2014, the service tax return could not be revised online as 90 days period was over and as found that the assessee had also tried to file revised return by manually to the service tax department which has not been accepted - HELD THAT:- There is no system of manual return filing/revised return by online due to expiry of limitation period. The assessee had tried to revise the service tax return, but the assessee was not successful in revising the service tax return. Considering the fact that the difference between service tax return and the revenue was occurred due to the wrong exchange rate applied to export income....... + More
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2023 (6) TMI 122
Penalty u/s. 271F - non- filing of ITR - assessee has failed to explain the reasonable cause for non filing of the returns inspite of having earned income from various sources - Reasonable cause for failure - assessee is an Advocate by profession and is also a partner in a law firm - HELD THAT:- Assessee has merely stated that owing to the financial crisis and his Accountant quitting the employment the assessee was unable to file returns, cannot be a reasonable cause for the failure on the part of the assessee. It is also pertinent to point out the fact that the assessee was on a bonafide belief that income of a partnership firm is exempted from tax, is an unacceptable contention that cannot be relied upon by a person like the assessee who is himself in the Advocacy of law. As well aware of the Latin maxim Ignorantia juris non excusat whi....... + More
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2023 (6) TMI 121
Estimation of profit from unaccounted sales - Profit estimation on total turnover - CIT(A) deleting the addition on account of estimation of profit from unaccounted sales made by the assessee from the clandestine removal of the goods - As stated by the D.R. in the Central Excise proceedings on the clandestine removal of the goods, the assessee settled the issue by availing Sabka Vishwas Scheme 2019 and paid the taxes on 12-11-2019 - HELD THAT:- As submitted by assessee, Tribunal in the case of Ganga Glazed Tiles Pvt. Ltd. [2018 (8) TMI 1847 - ITAT RAJKOT] deleted addition following the judgment in the case of Vrundavan Ceramics (P.) Ltd. [2019 (7) TMI 547 - GUJARAT HIGH COURT] Revenue’s further appeal before the Hon’ble High Court were dismissed and SLP filed before Hon’ble Supreme Court [2020 (1) TMI 1502 - SUPREME COUR....... + More
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2023 (6) TMI 120
Exemption u/s 11 - application seeking registration u/s. 12AA rejected - assessee failed to furnish the details as called for under the provisions of the Act - HELD THAT:- The assessee filed Form No. 10AB on 28-09-2022 which clearly shows that the assessee filed said application well within the time i.e. before 30-09-2022 and the said application was rejected for noncompliance by the assessee in furnishing required documents as sought by the CIT(Exemption), but however, the CBDT vide Circular No. 6 of 2023 clarified the time for filing Form No. 10AB was further extended till 30-09- 2023. Assessee shall be given an opportunity to furnish all the required documents as called by the CIT(Exemption) in the interest of justice. The order of CIT(Exemption) is not justified in cancelling the provisional registration granted on 06-04-2022 u/s. 12A....... + More
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2023 (6) TMI 119
Penalty u/s 271(1)(c) - addition on account of agricultural income on the basis of average income of two years - HELD THAT:- Admittedly such addition is based on estimation of two years’ average income and on such estimation, no penalty is leviable. As it is settled law that on estimation addition no penalty is leviable. Interest as obtained through interest bearing fund and used for non-business purposes - Assessee has voluntarily offered such interest expenditure during the assessment. Thus, the assessee is not to be penalized on such addition as he himself has offered before assessment proceedings. Direct the AO to delete the entire penalty levied under section 271(1)(c) - Grounds of appeal raised by the assessee are allowed.
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2023 (6) TMI 118
Reopening of assessment u/s 147 - assessee did not file his return of income - undisclosed capital gain - On the basis of the information available in AIR that the assessee along with 17 other co-owners has sold immovable property and since the assessee has not filed any return of income, therefore, no income under the head “capital gains” has been offered for taxation - HELD THAT:- If there is reasonable information on the basis of which a reasonable person can form a requisite belief that income chargeable to tax has escaped assessment, then proceedings u/s 147 can be validly initiated - sufficiency or correctness of the material is not a thing to be considered at the stage of recording reasons. Therefore we find no infirmity in the initiation of proceedings u/s 147 in the facts of the present case. Accordingly, grounds rais....... + More
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2023 (6) TMI 117
Enhancement of income - Exercise of power by the CIT(A) u/s 251 - introducing new source of income - AO had not applied his mind to the question of taxability or non-taxability of the three issues raised - HELD THAT:- Power of enhancement u/s 251(2) of the Act is restricted to the subject matter arising out of assessment proceedings or the source of income which has been considered expressly or by clear implication by the Ld. AO from the point of view of taxability of the assessee. In the present case, it is manifest that ld. AO did not consider the issues relating to allocation of common expenses in terms of provisions contained in section 115VJ requiring a reasonable basis, disallowance to be made under section 14A of the Act and deduction claimed under section 80GGB and 80G of the Act. It is also manifest that ld. CIT(A) had raised the....... + More
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2023 (6) TMI 116
Disallowances made u/s 143(1) - disallowance u/s 37, disallowance u/s 40(a)(ia) and disallowance u/s 43B - suo motu disallowances made by the assessee - HELD THAT:- The impugned order does not spell out how the ratio of the decisions referred to in the order were applicable to the facts of the case. The assessee is not disputing the nature of such expenditure - whether to be allowed or disallowed. The assessee itself says that such items of expenditure are inadmissible items and while computing the total income, they themselves disallowed the same. But there is no whisper as to the fact in the impugned order. We accept the contention of the assessee that these disallowances have to be deleted, after verification at the end of the jurisdictional AO - We, therefore, set aside the orders of the lower authorities and restore the issue to AO t....... + More
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2023 (6) TMI 115
Rectification of mistake u/s 154 - denial of claim for deduction u/s 80P by CPC u/s 143(1)(a) - CIT(A) dismissed the appeal of the assessee on the ground that denial of deduction u/s 80P(2)(d) does not amount to a mistake apparent from the record - HELD THAT:- CIT(Appeals) has dismissed the appeal of the assessee on the ground that the point of difference between computation of book profit made by CPC by denying the claim of deduction under Section 80P as such involved debatable issues and thus was outside the purview of Section 154 of the Act, but on the other hand he has upheld the denial of claim of deduction under Section 80P by way of adjustments u/s 143(1) which, in our view, covers within its scope correction of arithmetical mistakes and adjustment of incorrect claim u/s 143(1) through Centralized Processing of Returns. Also we obs....... + More
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2023 (6) TMI 114
Exemption u/s 11(1)(a) and Section 11(2) for Deemed income u/s 11(3) - as per assessee apparently there is no such prohibition that “deemed income” u/s 11(3) shall not be eligible for claim of exemption - HELD THAT:- We observe that in the case of Prabhas Patan Jain vs. Income Tax Officer,[2023 (2) TMI 963 - ITAT RAJKOT] has held that exemption under section 11 is not available on “deemed income” and, therefore, assessee was not eligible to claim exemption under section 11(1)(a) and section 11(2) in respect of “deemed income” under section 11(3) of the Act. CIT(Appeals) has not erred in facts in law in holding that “deemed income” under Section 11(3) of the Act is not eligible for claim of exemption under Section 11(1)(a) and 11(2). Assessee would be allowed to accumulate the income if there....... + More
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2023 (6) TMI 113
Long-term capital gains - receipts by the assessee as per the consent decree passed by the Hon”ble Bombay High Court in the suit for specific performance of the Agreement to Sell filed by the assessee transfer of any right, title, or interest in the property - main allegation of the Revenue that the amount paid to the assessee is not in lieu of “right to sue”, rather the same was paid to the assessee since it transferred/sold its rights/interest in the property, i.e. Villa Nirmala to R A Realty and therefore, capital gain arose to the assessee HELD THAT:- As decided in Sterling Construction & Investments [2015 (4) TMI 838 - BOMBAY HIGH COURT] once the suit for specific performance has been refused then the receipt of monetary sum cannot be taxed as claimed by the Revenue as the same is in the nature of compensation i....... + More
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2023 (6) TMI 112
Addition u/s 69 - cash deposits unexplained - cash-gift received - time gap between gifts received and cash deposited in bank a/c. - HELD THAT:- CIT(A) observation regarding his observation that gifts were made in cash and not through banking channel, we find merit in the submission of Ld. AR that the assessee’s father received sale consideration of property in cash and that is why he made cash gift to assessee. Regarding cash-gift received from mother, we find merit in the submission of Ld. AR that mother being a lady used to keep cash with her. In fact, this practice of ladies keeping cash is widely known to everyone. Therefore, making a gift of Rs. 1,50,000/- out of such cash held by her, is justified. Regarding another observation of CIT(A) that the assessee had not specified any occasion i.e. birth-day, wedding anniversary, etc....... + More
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2023 (6) TMI 111
Penalty u/s. 271B - assessee had not filed audit report - Qualification of CA doing audit for assessee - assessee pleaded before the AO that assessee had submitted its books to his Chartered Accountant (CA), but he failed to audit the books, then there was some dispute with the CA - HELD THAT:- Assessee had not given books to a qualified CA. We do not know, the exact qualification of Mr.Kadam, who calls himself Accountant. As per Section 288 “Explanation.-In this section, "accountant" means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) who holds a valid certificate of practice under sub-section (1) of section 6 of that Act”. Only a qualified CA is permitted to Audit books of account. In the affidavit it is claimed by the Accountant ....... + More
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2023 (6) TMI 110
Transfer of case u/s 127 - Assumption of jurisdiction of AO for the assessment - HELD THAT:- With the documentary evidences and the judicial precedence we are of view that the assessment is not in accordance with the provisions of law since the assessment order has been passed by ITO, Ward-1(1), Exemption, Kolkata whereas assumption of jurisdiction for the assessment was done by ITO, Ward-51(1), Kolkata who issued the notice u/s 143(2) - Also, a valid order u/s 127 which is required to be passed for transferring a case from one AO to another AO could not be brought on record, though claimed to have been mentioned in the referred documents. We, therefore, are inclined to allow the additional ground raised by the assessee in holding the impugned assessment order as bad in law, liable to be struck down. Accordingly, the additional ground taken by the assessee is allowed.
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2023 (6) TMI 109
Assessment u/s 144 - addition applying net rate of 8% on total deposit in bank - cash deposited during demonetization - onus to prove - HELD THAT:- Finding of the AO that deposits in this bank account in the name of ‘Yogi Enterprises’ are business receipts is without any basis and evidence on record. The onus is entirely on the assessee to file return of income as also to explain nature and source of each of the deposits in this account, and also to comply with the requirements of various provisions of statute as are concerning with the allowability of deductions towards business expenses while computing business income, such as provisions of Section 37(1), 40A(2) , 40A(3), 40(a)(ia), 36(1)(va) etc etc. The onus is squarely on the assessee to prove that he is carrying on business and compliance with provisions of statute befor....... + More
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