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2023 (4) TMI 1249
Penalty u/s. 271E - non mandate of provisions of section 269T - HELD THAT:- We are of the considered view that even if the financers on account of the poor track record of the assessee were not ready and willing to receive the monthly installments towards repayment of loans from her through cheques, then she could have safely made the said repayments by way of account payee bank drafts or electronic clearing system through his bank account or any other prescribed electronic mode as provided in Rule 6ABBA of the I.T. Rules, 1962. We are unable to persuade ourselves to subscribe to the explanation of the assessee that as the financers were not ready to receive the repayment of loans from her vide account payee cheques, therefore, for the said reason she was compelled to make the said payments in cash. Also we do not find any substan....... + More
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2023 (4) TMI 1247
Admission of additional ground before CIT(A) - powers of the appellate authorities including the Appellate Assistant Commissioner on entertaining an additional ground raise by assessee - additional ground of appeal on the new issue is not emanating from the assessment order and, therefore, it is dismissed by CIT(A) - HELD THAT:- The above understanding of the Ld.CIT(Appeals) is not correct. Any fresh claim by way of additional ground can be made by the assessee before the appellate authorities including the CIT(Appeals) and it is not only before the ITAT. We observed that the CIT(Appeals) misunderstood the decision of CIT vs. Jai Parabolic Springs Ltd. [ 2008 (4) TMI 3 - DELHI HIGH COURT] as in this case the assessee had raised an additional ground before the Tribunal even though there was no claim made in the return of income. T....... + More
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2023 (4) TMI 1244
Penalty u/s 271B - default u/s 44AB - assessee has failed to get its accounts audited within the specified due date - what's reasonable cause of delay in terms of Section 273B? - HELD THAT:- As the statutory auditor has provided the audit certificate and audit report only on 22.08.2015 and thereafter the tax audit was conducted, completed and submitted. This being so, we are of the view that the assessee has sufficient and reasonable cause for delay in submitting the audit report. Since the auditor was appointed by the Registrar of Cooperative Societies, therefore, there is no delay on the part of the assessee. Accordingly, we are of the considered opinion that the penalty levied by the AO u/s.271B of the Act and confirmed by the ld. CIT(A) deserves to be deleted and we do so. Appeal of the assessee is allowed.
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2023 (4) TMI 1240
Validity of order passed by the TPO u/s 92CA(3) - Period of limitation - HELD THAT:- After taking into consideration the material placed on record it is undisputed fact that transfer pricing officer has passed order u/s 92CA(3) on 30.01.2013 whereas the limitation for passing the said order u/s 92CA(3) expires on 29.01.2013. Therefore, taking into consideration the provision of the Act and decision of PFIZER HEALTHCARE INDIA (P.) LTD [ 2021 (2) TMI 1152 - MADRAS HIGH COURT] in the cases referred supra the order u/s 92CA(3) of the Act is time barred by 1 day. The order of the TPO and draft assessment order are barred by limitation, therefore, resulting in assessee not being a eligible assessee u/s 144C(15)(b)(i) of the Act. Consequently, the final assessment was also bad in law - Decided in favour of assessee.
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2023 (4) TMI 1239
Penalty levied u/s 271B - assessee society had got its account audited u/s 44AB on 10.12.2014, i.e. after the due date laid down in the Act i.e. 30.09.2013 - As argued by assessee statutory auditor was not appointed timely by the Register of Cooperative Society which was not in the hands of the Appellant only after completion of Statutory Audit, Tax audit was done - HELD THAT:- Before us, Asessee has filed paper book containing the documents relating to the letter of Jila Sahakari Kendriya Bank Maryadit, Raipur dated 17.10.2014 appointing the Tax Auditor, audited accounts, tax audit report dated 14.02.2015 and copy of computation acknowledgement. It was also submitted explanation of the assessee has not been considered in the proceeding before the CIT(A). It is fairly admitted that the statutory auditor is appointed by the Registr....... + More
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2023 (4) TMI 1235
Validity of order u/s. 143(3) r.w.s.144C(13) without quoting DIN - acceptability of manual final assessment order without DIN - HELD THAT:- On perusal of the order u/s. 143(3) r.w.s.144C(13), it is noted that the order neither contains the DIN in the body of the order, nor contains the fact in the specific format as stated that the communication is issued manually without a DIN after obtaining the necessary approvals. Therefore we are of considered view that the impugned order is not in conformity with CBDT circular. The contention of the ld DR was that the failure to generate and allocate DIN in this case is a mistake or at best, a defect and/or an omission, which ought not to invalidate the assessment proceedings. Though there is no specific provision under the Act which mandates quoting of DIN, the intention of the legislature....... + More
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2023 (4) TMI 1233
TP Adjustment - selection of MAM of the distribution transaction - TNMM v/s RPM - DRP confirmed the findings of the learned TPO that TNMM is the most appropriate method - assessee contending that when once the ITAT concluded in the first round of litigation that the business of the assessee is merely that of a pure distributor, then it is, but natural to conclude that the Resale Price Method (RPM) is the most appropriate method - HELD THAT:- A copy of the order [ 2020 (12) TMI 458 - ITAT HYDERABAD ] in assessee s own case, considered the functional profile of the assessee in the light of the terms of distribution agreement and held that the assessee is a distributor and not a service provider and also that RPM is the MAM. Since there is nothing contrary on record, we find it difficult to take a different view for this year under....... + More
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2023 (4) TMI 1224
Employee s contribution of PF/ESI on or before the due date prescribed under the relevant PF/ESI - Determination of Due date - assessee said that due has to be reckoned within 15 days from the close of the month in which payment is made to the employee, whereas according to Revenue the contribution has to be deposited within the 15 days from the close of the month for which salary/wages of the employee is due - HELD THAT:- It will be appropriate if the term every month specified in Provident Fund scheme, whether it is the month for which salary/wages are due or month of the payment is referred to Relevant Authorities for finding out with reference to any judicial precedent in respect of provisions of the relevant Act. Accordingly. we restore this issue back to the file of the Ld. Assessing Officer with the direction to find out fr....... + More
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2023 (4) TMI 1223
TP Adjustment - international transaction of import of machine parts in the case of the assessee - DRP not allowing Upward Revision towards purchase price of import purchase on difference of arms length price in relation to international transactions though fully explained - HELD THAT:- We agree with the ld.counsel for the assessee that both the amounts of insurance claim and foreign exchange fluctuation need to be added to the operating revenue of the assessee for the purpose of arriving at the ALP of the international transaction. Thus, this contention of the assessee is accordingly allowed. TP adjustment pertaining to the adjustment of the PLI of comparables which as per assessee ought to have been arrived at by making the same at the transaction level and not at the entity level, as done by the Revenue - We in agreement with t....... + More
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2023 (4) TMI 1222
Exemption u/s 11/12 - delayed filing of Audit Report in Form 10B - procedural defect - claim made in the return of income, when the audit-report (Form No. 10B) was filed after filing of return but before processing u/s 143(1) - HELD THAT:- We are convinced that the controversy is directly settled in favour of assessee by decision in Savitri Foundation [ 2022 (8) TMI 1372 - ITAT MUMBAI ] as following case of Mumbai Metropolitan Regional Iron Steel Market Committee [ 2015 (4) TMI 512 - BOMBAY HIGH COURT ] non-filing of Audit Report in Form 10B along with Return of Income is merely a procedural defect which is rectifiable. If the Audit Report was available with the assessee at the time of filing of Return of Income and was not filed due to bona fide reasons the benefit of exemption under section 11 cannot be denied if otherwise assessee....... + More
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2023 (4) TMI 1212
Unexplained Investment made in cash - HELD THAT:- Assessee failed to establish the source of cash. Assessee did not file any representation before the Revenue authorities regarding typographical error. It is evident from the records that the CIT(Appeals) has given a finding about bank withdrawal and and deleted part of addition after considering the same. Thereby, he partly allowed the appeal of the assessee. It is not the case where the learned CIT(Appeals) sustained the addition without considering the material available on record. Therefore, looking to the facts of the present case at this stage the assessee has not made out any case for deletion of impugned addition, hence no interference is called for in the order of learned CIT ( Appeals ) . Grounds raised in this appeal are dismissed.
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2023 (4) TMI 1211
Exemption u/s 11 - denial of registration to applicant u/s 12AA - as argued such trust is engaged in activities, which are within the meaning of Charitable purpose , as defined u/s 2(15) - HELD THAT:- We find that the said payment was related to the charitable activities of the trust. For registration u/s 12AA it is clearly stipulating that the CIT(E) shall satisfy himself about the objects and the genuineness of its activities. The assessee made the payments in relation to charitable activities of trust. The ld. DR had not made any strong objection related to submission of the assessee and the evidence which are filed before the bench. We set aside the order of the ld. CIT(E) and direct to allow the registration of the assessee. Appeal of assessee allowed.
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2023 (4) TMI 1210
Addition u/s 68 and 69A - assessee failed to establish the creditworthiness of the M/s. Royal Home Constructions and the genuineness of transaction of the Refundable Fidelity Guarantee as per the development agreement - CIT-A deleted the addition - HELD THAT:- As it is well established and the fact of non-service of notice on M/s. Royal Home Constructions or M/s. Royal Home Constructions not filing the returns from assessment year 2013-14 is of no consequence on this issue. It was open for the learned Assessing Officer to inform the said fact to the learned Assessing Officer of M/s. Royal Home Constructions for further action on that aspect. But that cannot be a ground to penalise the assessee. Entries in the bank account of the assessee towards refundable fidelity guarantee amount received from M/s. Royal Home Constructions are wel....... + More
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2023 (4) TMI 1209
TDS u/s 194C - payments made to driver-partners under the Uber App and payments made to the restaurant and courier partners under the Uber EATS App - Meaning of person responsible for paying u/s 204 - primary services provided through this mobile App is the transportation services wherein the passenger looking for a ride on the App and the driver/vehicle owner willing to offer accepts the offer - HELD THAT:- As in assessee s own case in M/s Uber India Systems Private Ltd [ 2021 (3) TMI 326 - ITAT MUMBAI] held that the assessee cannot be treated as a person responsible for paying for the purpose of section 194C r/w section 204 of the Act in respect of payment made to driver partners on behalf of the Uber BV for the transportation services. Accordingly, the coordinate bench held that the assessee cannot be treated as an assesse....... + More
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2023 (4) TMI 1208
Charging interest u/s 234A, 234B and 234C - late filing of return of income - return of income u/s 139 was not filed for the relevant year under bonafide belief that since the assessee has not having any other income from business or profession the assessee does not require to file any return of income - HELD THAT:- It is pertinent to note that Section 234A is a mandatory provision as the wording used by the statute is when the assessee furnished return of income after the due date or is not furnished under sub-Section 1 or sub-Section 4 of Section 139 the assessee shall be liable to pay simple interest at the rate of 1% for every month or part of a month comprising in the period commencing on the date immediately following the due date. Section 234A(1) Explanation 3 categorically states that where in relation to an assessment yea....... + More
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2023 (4) TMI 1207
Unexplained investment u/s. 69B - income towards difference in stock - excess stock found during the course of survey - AO levied tax u/s. 115BBE - HELD THAT:- We are of the considered view that when the assessee has explained source for excess stock found during the course of survey, is out of income generated from current year business and explanation offered by the assessee is plausible explanation, then income offered towards excess stock cannot be treated as unexplained investment u/s. 69B of the Act, and also provisions of section 115BBE. AO and the Ld. CIT(A) without appreciating relevant facts assessed additional income offered towards excess stock as unexplained investment u/s. 69B of the Act and levied tax u/s.115BBE - We set aside the order passed by the CIT(A) and direct the AO to assess additional income offered towar....... + More
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2023 (4) TMI 1206
Chargeability of tax u/s 115BBE - Nature of income declared in survey proceedings u/s. 133A? - Undisclosed income u/s 69A and 69C or Business Income - as per assessee since the amount that was surrendered was business income, the same was liable to be taxed u/s. 28 and therefore it should suffer normal tax rate of 30% and not the high tax rate as per section 115BBE - HELD THAT:- There is no finding of the lower authorities as to whether the income declared during the course of survey is arising out of business or it is from the income from other sources. In such a situation more so, when the contention of the assessee is that the assessee has no other business then the present business and the income declared is out of the business of the assessee, we are of view that the matter needs to be re-examined at the end of AO. We therefo....... + More
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2023 (4) TMI 1205
TDS u/s 195 - non-deduction of TDS u/s 40(a) (i) - assessee company is a subsidiary company of its parent company in Japan - whether assessee had a Dependent Agency Permanent Establishment (DAPE) in India? - HELD THAT:- CIT(A) correctly concluded Mitsui India Pvt. Ltd. (appellant company in the instant case) is a Dependent PE agent of Mitusi Co. Ltd (Japan) have now been decided by the ITAT. The ITAT has already held that the appellant is not the PE of Mitusi Co. Ltd (Japan), hence in view of said findings of the Honorable ITAT there is no question of attribution of any profit of Mitusi Co. Ltd (Japan) to the appellant company. Accordingly, there is no question of deduction of tax on the same. In view of the same, the disallowance made by the AO under section 40(a)(i) of the Act, is directed to be deleted. Decided in favour of assessee.
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2023 (4) TMI 1185
Assessment u/s 153A - estimation of net profit, addition u/s 68 respect of the share application money and premium - As submitted all the persons responsible for the affairs of the company were in judicial custody and, therefore, the assessee could not produce all the relevant books, vouchers etc., before the authorities to prosecute the case diligently. HELD THAT:- As from 12/02/2016 to 23/10/2018 all the persons responsible for the affairs of the company were in custody and in their absence, as claimed by the learned AR, some part of the material was produced before the authorities. There is nothing contrary to disbelieve the statement of the learned AR that the assessee could not prosecute the proceedings before the authorities diligently due to the fact of non-availability of the persons responsible for the affairs of the company. ....... + More
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2023 (4) TMI 1173
Validity of reassessment proceedings u/s 147 - notice after the expiry of 4 years from the end of the relevant assessment year - business loss claimed by the assessee, which is chargeable to tax has escaped assessment and the assessee has failed to disclose true and full particulars of income for the year under consideration - HELD THAT:- All the details sought by the AO were provided by the assessee during the course of scrutiny assessment proceedings, and the said details were accepted by the AO under section 143(3) of the Act. Further, from the perusal of reasons recorded for reopening the assessment, it is evident that the only basis available with the AO for initiating the impugned reassessment proceedings was the perusal of the profit and loss account and balance sheet i.e. the information which was already considered and examine....... + More
