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• 2022 (9) TMI 1384
  
  Reopening of assessment u/s 147 - date of the issuance of the Notices - validity of the Notices issued u/s 148 as it stood prior to its amendment on 01st April, 2021, by the Finance Act, 2021 - Whether the JAO’s act of generating Notice in the ITBA portal on 31st March, 2021, without despatching the Notice meets the test of the expression ‘shall be issued’ in Section 149 and saves the Notices from being time barred? - HELD THAT:- There is no dispute in the present cases and it has been conceded during rejoinder arguments that the Notices have been despatched on or after 1st April, 2021, unlike in the case of Rajesh Sunderdas Vaswani [2016 (6) TMI 701 - GUJARAT HIGH COURT] where the date of despatch was seriously disputed. This Court has only been called upon to determine the legal effect of the despatch of 1st April 2021....... + More

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• 2022 (9) TMI 1383
  
  Deduction u/s 80(I) - scope of the word ‘derived’ and the word ‘industrial undertaking’ - applicability of the words “derived from an industrial undertaking” as mentioned u/s 80(I) - whether the interest paid on delayed payments form part of profits and gains derived from an industrial undertaking? - HELD THAT:- Section 80HH of the I.T. Act, which deals with deductions in respect of the profits and gains from newly established industrial undertakings or Hotel business in backward areas also contains the phrase “profits and gains derived from an industrial undertaking.” The word ‘derived’ has been construed by the Privy Council in CIT vs. Raja Bahadur Kamakhaya Narayan Singh [1948 (7) TMI 1 - PRIVY COUNCIL] Hon’ble Supreme Court in Pandian Chemicals Ltd. [2003 (4) TMI 3 - SU....... + More

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• 2022 (9) TMI 1382
  
  Reopening of assessment u/s 147 - Eligibility of reasons to believe - Period of limitation - HELD THAT:- Seeing as the assessment framed originally was under scrutiny, the Assessing Authority could proceed to re-assess the income u/s 147, only if he is in a position to, and does, establish that the alleged escapement is on account of the petitioner having failed to make a full and true disclosure at the first instance. A perusal of the reasons would indicate that there is no tangible material that has been found by the Assessing Authority, post assessment, to lead to a conclusion that the original disclosure made by the petitioner was either incomplete or untrue. In fact, the only material referred to in the reasons, is the assessment order itself in which the depreciation schedule, the rates of depreciation and the claim of the petitione....... + More

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• 2022 (9) TMI 1381
  
  Revision u/s 263/264 - challenging the proceedings issued for the assessment year 2017-18, the petitioner preferred an appeal before the second respondent. Pending appeal, an application for revision, intimation under Section 143(3) of the I.T. Act came to be made under Section 264 - Whether an application under Section 264 of the I.T. Act cannot be entertained pending appeal, an order came to be passed rejecting the request for revision of intimation? - HELD THAT:- Commissioner cannot revise an order under Section 264(4) where an appeal is filed against an order to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal or where the order is pending on an appeal before the Deputy Commissioner (Appeals) or where the order has been made subject, of an appeal to the Commissioner (Appeals) or to the Ap....... + More

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• 2022 (9) TMI 1380
  
  Reopening of assessment u/s 147 - order under Clause (d) of Section 148A - As argued procedure as required for issuance of notices and order under Section 148A(d) of I.T. Act are not in accordance with law - HELD THAT:- Ascertaining the e-mail of the assessee, the order under Clause (d) of Section 148A a notice under Section 148 of the I.T. Act was also sent to the e-mail address of the assessee on 12.04.2022 and the same has been received, which is admitted by the petitioner. From the above averments in the counter, coupled with the provisions of the Act, it is very clear that the petitioner is having an opportunity of explaining his stand, in the proceeding initiated pursuant to the notice under Section 148 of the I.T. Act. In fact no prejudice is caused to the petitioner by the acts of the respondents, if any. Having regard to the abov....... + More

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• 2022 (9) TMI 1379
  
  Reopening of assessment u/s 147 - as no assessment orders are passed under sub clause (4) to section 144C - Assessee case was referred to the TPO u/s 92CA and the TPO inturn, passed an order under section 92CA (3) - whether the Assessing Officer can issue notice under section 148 of the Act when the Assessing Officer has not passed an assessment order under section 144C(4)? - HELD THAT:- The basic requirement for invocation of section 147 is that the assessing officer has the reason to believe that income chargeable to tax, had escaped assessment; and after recording the reasons for reopening the assessment, the assessing officer has to issue notice under section 148 to the assessee. In the present case, the return of income filed by the assessee, was subjected to scrutiny. As there were international transactions involved, the case was r....... + More

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• 2022 (9) TMI 1378
  
  Recovery proceedings along with further interest on the principal amount - money was advanced to the defendant through the banking channels on the various dates - HELD THAT:- In the case at hand, the balance-sheets for the Financial Year 2015 - 2016, 2016 - 2017 and 2017 - 2018 clearly record the amount due and payable to the plaintiff in the respective financial years. The audited reports appear to have been filed in compliance with the statutory requirement contained in Section 44AB - It would be contextually relevant to note that in the balance confirmation letter dated 1st April, 2019 (P1/6) the defendant has clearly acknowledged the outstanding balance as of 1st April, 2019. The entries therein are supported by the Ledger Account (Exhibit-P1/8) maintained by the plaintiff. Institution of the suit on 29th March, 2022 thus appears to b....... + More

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• 2022 (9) TMI 1377
  
  Validity of assessment order - denial of natural justice - petitioner submitted reply to the show cause notice making several objections/submissions mentioned therein, but the authority without giving due opportunity of hearing and without considering the objections/submissions made in the reply, passed the impugned order - HELD THAT:- From bare perusal of record it is apparent that the show cause notice was issued on 26.03.2022 and in pursuance to which reply was filed by the petitioner on 27.03.2022. As the petitioner had already filed reply and the impugned order was passed after consideration of the reply, therefore, it cannot be said that no opportunity of hearing was given to the petitioner. As such the petition cannot be entertained on the ground of non-affording an opportunity of hearing and violation of principles of natural just....... + More

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• 2022 (9) TMI 1376
  
  Income from other sources u/s.56(2)(vii)(b) - difference between guideline value of the property and consideration paid for purchase of property - HELD THAT:- There is no dispute with regard to the fact that there is a difference between consideration paid for purchase of property as per registered document and guideline value of the property fixed by the authorities for payment of stamp duty. It is also not in dispute that the AO has referred valuation of the property to the DVO and the DVO has determined value of the property. We are of the considered view that difference between the DVO value of Rs.74,99,648/- and consideration paid for purchase of property at Rs.31,80,000/-, should be assessed as income of the purchasers in terms of s.56(2)(vii)(b) - AO after considering relevant facts has rightly made addition towards differential co....... + More

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• 2022 (9) TMI 1375
  
  Deduction u/s 80P(2) - Claim denied as assessee made a claim in the income tax return but for not filling up certain Schedules in the return correctly - Denial of natural justice as opportunity to substantiate its claim with necessary documentary evidences not given - HELD THAT:- As before denying such claim no opportunity has been given to the assessee as provided in the provisions of Section 143(1)(a) of the Act where the proviso states that “No such adjustments shall be made unless any intimation is given to the assessee of such adjustments either in writing or in electronic mode and further provided that the response received by the assessee, if any, shall be considered before making any adjustment, and in a case where no response is received within thirty days of the issue of such intimation, such adjustments shall be made.&rdq....... + More

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• 2022 (9) TMI 1374
  
  Addition u/s 68 - Unexplained cash credit - HELD THAT:- Pattern of deposits in bank account shows that there are certain cheque deposits, deposits in cash and regular withdrawal of amount. The frequent deposit and withdrawal shows that the bank account in dispute was used for unreported business transactions. As recorded above assessee before us claimed that the assessee was doing a business of plastic items, thus, considering the submissions of assessee, we find merit in his submission that the assessee was doing some business activity, though it was not disclosed to the department. Taxing the entire credit is not justified, thus, it would be justified if only profit element in such business activities from where the assessee generated the credit found in the bank account. The lower authorities have confirmed the entire aggregate of depo....... + More

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• 2022 (9) TMI 1373
  
  Rectification u/s 154 - income to be revised under the rectification petition - assessee that while e-filing the original Return of Income by mistake the gross total income is typed as Rs. 55,40,001/- and after paying taxes of Rs. 30,629/-. - Revised Return Filled for rectification - rectification petition was dismissed by the assessing officer on the ground that Revised Return ought to have been filed within time limit prescribed under the Act - HELD THAT:- In the present case at hand, the assessee has not made any new claim or deduction which require to file Revised Return. The grievance of the assessee is that the typographical error which has happened while filing the e-return. Thus, this is a clear case of mistake apparent on record which is very well curable/rectifiable u/s. 154 - Thus both the assessing officer and the Ld. CIT(A) h....... + More

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• 2022 (9) TMI 1372
  
  Bogus Short Term Capital Gain on sale of land - HELD THAT:- Remand Report received from the AO simply confirmed about the payments made by the assessee to the land owners as well as third parties by the assessee. AO has not taken any steps to verify the above details either from the 5 land owners or the remaining 10 third parties it is being suffered taxed in the respective hands. AO attempted to tax the entire consideration in the hands of the assessee, which is negativated by the CIT(A) after considering the facts in detail. Therefore we do not find any infirmity in the findings of the ld. CIT(A) that the assessee is an entry provider only and was involved in accommodation entry business and has been rightly taxed at 0.5% for commission income on the deposits in the bank account which includes the sale consideration and directed to dele....... + More

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• 2022 (9) TMI 1371
  
  Disallowance of deduction u/s 54/54F - since the assessee had claimed deduction on account of investment in property purchased during the year but had failed to follow the terms and conditions in law therefore the deduction claimed by the assessee needed to be taxed in the impugned year - Assessee not depositing the capital gain earned in the capital gain account scheme of the Bank as required by law before the due date of filing return of income of A.Y 2011-12 ,in which the deduction was claimed - HELD THAT:- For the violation the claim of deduction in the said year itself, i.e A.Y 2011-12, should have been denied. Merely because the assessee files his return for that year belatedly, i.e during the impugned year, does not mean that the deduction claimed will be added to the income of the assessee for the impugned year. The violation of c....... + More

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• 2022 (9) TMI 1370
  
  Rectification of mistake u/s 154 - Credit of TDS - HELD THAT:- As submitted that the appeal filed by the assessee before the learned CIT(A) and the impugned order passed by the CIT(A) disposing of the said appeal has become infructuous and urged that the same may be cancelled. After having perused the copy of the order passed by the Assessing Officer under Section 154 of the Act - copy of which is placed on record before us, we are inclined to accept the contention of the learned Counsel for the assessee. Even the DR has not raised any objection in this regard. We accordingly set aside the impugned order passed by the learned CIT(A) and allow this appeal of the assessee.

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• 2022 (9) TMI 1369
  
  Penalty levied u/s. 271(1)(c) - Disallowance of deduction u/s 35E as none of the income was proved by the assessee was earned from the business of prospecting for or extraction/production of mineral eligible to claim - HELD THAT:- It is seen from record that the assessee was granted mining lease for “lignite” for a period of 30 years in Bhavnagar District. There is also report from Gujarat Electricity Board and Mining Department, Government of Gujarat evidencing that the assessee is engaged in the prospecting activities for the minerals during the assessment year 2003-04. The assessee incurred necessary expenditures for this preliminary activities for the mining works and claimed u/s. 35E - assessee could not start commercial production within 5 years. The Co-ordinate Bench of this Tribunal has confirmed the disallowance u/s. ....... + More

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• 2022 (9) TMI 1368
  
  Reopening of assessment u/s 147 - Unexplained gift receipt - “reason to suspect” or “reasons to believe” - assessee declared the gift received from his real brother in the statement - HELD THAT:- With respectful observation of the apex court that the vague reason should not be accepted. But the reason recorded by the ld. AO is not factually incorrect. The recent judgment of LaljibhaiKanjibhaiMandalia [2022 (7) TMI 639 - SUPREME COURT] held that formation of opinion and the reasons to believe recorded is not a judicial or quasi-judicial function but administrative in character.The information must be in possession of the authorised official on the basis of the material and that the formation of opinion must be honest and bona fide. It cannot be merely pretence. Consideration of any extraneous or irrelevant material ....... + More

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• 2022 (9) TMI 1367
  
  Assessment u/s 153A - Addition u/s 68 - unexplained credits of LTCG - Addition of amount of commission paid for acquiring such alleged bogus long term capital gain was also added u/s 69C - CIT(A) accepted the contentions of the assessee and held that no addition could be made as no incriminating material was found with respect to the Long Term Capital Gain by alleging the same as non-genuine - HELD THAT:- We have gone through the grounds of appeal raised by the revenue and it appears that the revenue has not challenged the findings of the ld. CIT(A) on the very legal ground decided by ld. CIT(A) against the revenue. Thus, it is clear that this legal aspect of the decision is not challenged by the revenue before us. Thus, it is undisputed that when there is no incriminating material no addition could be made in the order passed u/s. 153A o....... + More

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• 2022 (9) TMI 1366
  
  Deduction u/s 80IB - Disallowance of Deduction as project was not completed as work-in-progress was reflected in the profit and loss account - CIT-A deleted the addition - Whether provisions of clause (e) & (f) of section 80IB(10) are not applicable to the flats booked prior to 01.04.2010, even if the sale of the said flats was made after 01.04.2010 (date of insertion of clause e & f)? - AO observed that as per l0CCB report the housing project was completed on 30.06.2010 but in the profit & loss account work-in-progress was appearing and thus wrong information was submitted by the assessee with regard to completion of project - HELD THAT:- There are two phases where the assessee company is engaged both the projects are of residential units, where the 1st Phase is consisted 450 units and 6 shops. This phase-1 was eligible for d....... + More

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• 2022 (9) TMI 1365
  
  Depreciation on "Toll Road" - CIT-A directing the AO to restrict the depreciation allowed to the amount actually claimed by the appellant in the return of income - restricting the rate of depreciation to 15%, as claimed in the return of income, against 25% allowable in case of intangible assets - HELD THAT:- As it is evident that such a claim of the assessee has been allowed in the previous assessment years and therefore, it cannot be denied that the assessee was under a bona fide belief that it has correctly claimed deduction of depreciation on toll road by treating the same as ‘plant and machinery’ at 15%, in view of the consistent findings in its own case. However, subsequently, due to change in legal position, the claim of deduction of depreciation by treating the road as ‘plant and machinery’ was dis....... + More

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