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- 2021 (5) TMI 978 - BOMBAY HIGH COURT
Permission to file paper return - justification for not fling electronic return of the income tax - HELD THAT:- The Petitioner is permitted to file paper return for the assessment year 2020-21 before 31st May, 2021 subject to the further orders that may be passed by this court at the stage of admission or thereafter till this writ petition is finally decided. All contentions of the parties are kept open. It is made clear that whether such paper return proposed to be filed by the Petitioner is incompliance with the Income Tax Act or Rules or not is also kept open. The Petitioner would be at liberty to file rejoinder to the affidavit in reply dated 20th May, 2021 filed by the Respondents within a period of two weeks from today and serve a copy thereof upon the Respondents’ Advocate.
- 2021 (5) TMI 970 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 - penny stock transactions - information received from ITO (CIB-1), Mumbai at DIT (I & CI, Mumbai) that as per the penny stock transaction data assessee had sold 3300 shares of Karma Ispat Limited and earned long term capital gain - HELD THAT:- Applying the principle of law, in the case of Aayojan Developers [2011 (2) TMI 738 - GUJARAT HIGH COURT] to the facts of the present case, we are of the view that, the facts mentioned in the affidavit by the revenue could not be termed as “new ground” or “new reasons” to supplement the reasons recorded by the AO. Therefore, the contention raised by the learned counsel for the writ applicant that, by way of affidavit in reply, the revenue has improved the reasons recorded, has no any merit and cannot be accepted to hold that, the exercise t....... + More
- 2021 (5) TMI 969 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 - penny stock purchases - “new ground” v/s “new reasons” - information in respect of the penny stock transaction made by assessee - HELD THAT:- Though the reopening of the assessment after expiry of four years from the end of the relevant assessment year, it is not necessary for the AO to show that, there was any failure to disclose fully or truly all material facts necessary for the assessment. When return is processed under Section 143 (1) of the Act and intimation sent to the assessee, it is not an “assessment”. Therefore, when reopening is sought of an assessment, the initial return was processed u/s 143(1) of the Act, the AO can form ‘’reason to believe’’ that income has escaped assessment by examining the return and/or the documents accompany....... + More
- 2021 (5) TMI 926 - GUJARAT HIGH COURT
Reopening of assessment u/s 148 - non disposing of the objections raised by the assessee against the reasons recorded before issuance of notice under Section 148 - HELD THAT:- Applying the dictum as laid down in the case of GVK Driveshaft [2002 (11) TMI 7 - SUPREME COURT], we are of the view that disposing of the objections raised by the assessee against the reasons recorded before issuance of notice under Section 148 of the Act, though not part of the statutory requirement, as prescribed under the Act, however, same is guided by the directions issued by the Apex Court. The specific objections raised by the writ applicant, produced on record at page-33 to 45 to this writ application, have not been properly dealt with by the AO. The lapse is in clear violation of the decision of the Apex Court. We are of the view that the AO has passed the....... + More
- 2021 (5) TMI 925 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 - notice beyond the period of 4 years - HELD THAT:- In the case of GKN Driveshaft [2002 (11) TMI 7 - SUPREME COURT] the Supreme Court has laid down the procedure as to the manner of dealing with the objections raised against the notice under Section 148 of the Act. The Supreme Court has held that when a notice u/s 148 of the Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notice. AO is bound to furnish reasons within a reasonable time and upon receipt of reasons, the noticee is entitled to file an objection to issuance of notice and AO is bound to dispose of the same by speaking order. In the case of SABH Infrastructure Ltd [2017 (9) TMI 1589 - DELHI HIGH COURT] has held that the exercise of considering the assessee’s objec....... + More
- 2021 (5) TMI 922 - KARNATAKA HIGH COURT
Deduction u/s 80IB(10) - when the assessee has not satisfied the requirements of the said provision and when the project was approved with a sanctioned built up area and the assessee has eventually constructed the area far in excess of what was approved - HELD THAT:- On close scrutiny of the judgment rendered by this court in Brigade Enterprises Ltd.[2020 (9) TMI 1137 - KARNATAKA HIGH COURT] and the facts involved in the said case, we are of the considered opinion that the substantial question of law involved in this appeal is squarely answered in the said case. Following the dictum in Brigade Enterprises, the substantial question of law raised in this appeal is answered against the Revenue and in favour of the assessee.
- 2021 (5) TMI 883 - MADRAS HIGH COURT
Denial of principles of natural justice - petitioner has sought an adjournment on the ground that the petitioner is collating materials necessary to substantiate its stand before the Officer. However, the impugned order of assessment has been passed without taking note of the request of the petitioner for adjournment - HELD THAT:- Admittedly, the request for adjournment has not been rejected, neither the assessee duly intimated. Thus, there has been apparent violation of principles of natural justice. The impugned order is set aside. The petitioner will comply with the directions in notice dated 10.03.2021 and intimate the Assessing Officer accordingly within a period of three (3) weeks from today. The respondents will facilitate receipt of such reply by the petitioner by enabling the portal to receive the objections. Upon receipt of objections, the Assessing Authority will hear the petitioner and take forward the assessment and complete the same in accordance with law.
- 2021 (5) TMI 882 - MADRAS HIGH COURT
Order passed u/s 144 greatly prejudices the petitioner - Non-appearance was on account of the fact that his father had suffered a traumatic road accident in March, 2017, which rendered him brain dead - HELD THAT:- As noted that there has been a hiatus of two years between the discharge of the petitioner's father and the issuance of notice by the Assessing Officer prior to framing of assessment, vide order dated 08.12.2019. Taking a humanitarian view of the matter, to which there is no serious opposition put forth by the learned counsel for the respondents substantial interests of justice would require permitting the petitioner to cause appearance before the Assessing Officer/R2 and put forth his submission. The files for assessment of the petitioner appear to have been transferred from R1 to R2. No challenge is put forth to the transf....... + More
- 2021 (5) TMI 881 - MADRAS HIGH COURT
Reopening of assessment u/s 147 - Income deemed to accrue or arise in India - writ against the show cause notice - as contended that absolutely there is no business activity in India, there is no manufacturing unit, not even a single product is sold within the territory of India by the petitioner-company - the company is only providing logistic support to the company at Hong Kong and goods are supplied in African Countries and South America and in other countries - HELD THAT:- As show cause notice cannot be assailed in view of the fact that many informations and evidences as well as the modus operandi of the petitioner-company are elaborated with reference to certain informations, statements and evidences collected by the respondents. All such details, informations and evidences are to be answered by the petitioner-company in order to cul....... + More
- 2021 (5) TMI 879 - KARNATAKA HIGH COURT
TDS u/s 195 - payments made by the appellant for purchase of computer software by holding that the said payments are in the nature of ‘royalty’ - disallowance made under Section 40(a)(i) - HELD THAT:- As decided in the case of ENGINEERING ANALYSIS CENTRE FOR EXCELLENCE PRIVATE LIMITED [2021 (3) TMI 138 - SUPREME COURT] amounts paid by resident Indian end-users/distributors to non-resident computer software manufacture/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of which the persons referred to in Section 195 of the Income Tax Act were not liable to deduct any TDS under Section 195 - Decided in favour of assessee.
- 2021 (5) TMI 877 - KARNATAKA HIGH COURT
Income chargeable to tax in India - Amount received by the Assessee for sale of software amounted to royalty as defined under Explanation 2 to Section 9(1)(vi) of the Income-tax Act, 1961 and under Section 12 of the India-Israel (DTAA) - HELD THAT:- As decided in the case of ENGINEERING ANALYSIS CENTRE FOR EXCELLENCE PRIVATE LIMITED [2021 (3) TMI 138 - SUPREME COURT] amounts paid by resident Indian end-users/distributors to non-resident computer software manufacture/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of which the persons referred to in Section 195 of the Income Tax Act were not liable to deduct any TDS under Section 195 - Decided in favour of assessee.
- 2021 (5) TMI 848 - DELHI HIGH COURT
TP Adjustment - Compensation received on demerger of its mobile segment business - petitioner’s case that, since in the second order passed by the TPO, dated 31.01.2021, this aspect was left open for examination by the AO, the AO could not have taken recourse to the provisions of Section 92CA(4) of the Act, and made the addition without giving an opportunity to explain its stand - HELD THAT:- We tend to agree with the contentions made by petitioner. Since, the matter requires further examination, issue notice. Revenue accepts service on behalf of the respondents/revenue. Counter-affidavit will be filed within three weeks from today. Rejoinder thereto, if any, will be filed before the next date of hearing.
- 2021 (5) TMI 847 - DELHI HIGH COURT
Faceless assessment u/s 144B - Approval of personal hearing - HELD THAT:- Once an assessee [i.e., the petitioner, in this case] requests for a personal hearing, the officer in-charge, under the provisions of clause (viii) of Section 144B(7) of the Act, would have to, ordinarily, grant a personal hearing. In any event, since Ms. Malhotra is not able to inform us as to whether steps under sub-clause (h) of Section 144B(7)(xii) of the Act have been taken by respondent no. 1, we are inclined, at least at this stage, to agree with the contentions advanced on behalf of the petitioner. Accordingly, issue notice. Ms. Malhotra accepts service on behalf of the respondents/revenue.
- 2021 (5) TMI 844 - MADRAS HIGH COURT
Reopening of assessment u/s 147 - Change of opinion or not - Benefit of doubt - HELD THAT:- The petitioner is bound to establish the reasons stated for reopening of assessment. Certain intricacies raised by the Department with reference to certain transactions are to be adjudicated in the manner known to law and the High Court cannot go into the details of such transactions so as to make a finding, which would cause prejudice to either of the parties. Such accounting transactions are to be scrutinised by the experts and such an exercise cannot be done by the High Court more specifically in a writ proceedings wherein, the very initiation of proceedings for reopening of assessment is under challenge. Even the benefit of doubt in this regard should be held in favour of the Revenue and not in favour of the assessee. Even in case where the pet....... + More
- 2021 (5) TMI 842 - MADRAS HIGH COURT
Disallowance of expenses - Allowable business expenses - AO granted 50% relief and held that the assessee had not submitted the detailed statement of expenditure with supporting material before the Tribunal - HELD THAT:- AO was of the prima facie view that the assessee would have incurred expenses under various heads mentioned by them. The assessee has to be fully blamed for inviting such a finding. Had they produced relevant documents to justify the expenditure claimed by them, which, according to them, were towards vessel handling charges, traveling and conveyance allowances, labour charges, secretarial expenses, postage and courier, then, in all probabilities, the assessee might have got relief before the Tribunal. The second aspect is that before the First Appellate Authority, the assessee did not effectively contest the matter though....... + More
- 2021 (5) TMI 840 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 - whether the revenue is justified in reopening the assessment for the year under consideration? - HELD THAT:- The facts mentioned in the affidavit by the revenue could not be termed as “new ground” or “new reasons” to supplement the reasons recorded by the Assessing Officer. The contention raised by the learned counsel for the writ applicant that, by way of affidavit in reply, the revenue has improved the reasons recorded, has no any merit and cannot be accepted to hold that, the exercise to reopen the assessment is without jurisdiction. AO failed to record an independent finding as to how the income has escaped assessment - Under such facts and circumstances, it is vehemently contended that, the Assessing Officer while recording the reasons for reopening the assessment did not have....... + More
- 2021 (5) TMI 810 - DELHI HIGH COURT
Validity of Assessment passed under Section 143(3) read with Section 144B - order was passed prior to the expiration of deadline prescribed for preferring a response - assessment order was passed much before the time to file the response elapsed - alternative remedy available - demand issued under Section 156 of the Act and the notice for initiation of penalty proceedings issued under Section 274 read with Section 270A - HELD THAT:- The impugned orders cannot be sustained.The reason being that, although, via the show cause notice-cum-draft assessment order dated 18.04.2021, the petitioner was given leave to respond to the same by 23.59 hours on 22.04.2021, the impugned assessment order was passed on 22.04.2021 at 14.11 hours, i.e., much before the time to file the response elapsed. The petitioner has taken the stand, as indicated in our o....... + More
- 2021 (5) TMI 806 - MADRAS HIGH COURT
Demand calling upon the petitioner to remit interest u/s 220(2) in regard to the arrears of demand - HELD THAT:- Admittedly, the interest demand has itself attained finality, insofar as the application of the petitioner for waiver of interest u/s 220(2A) of the Act was dismissed by the Principal Commissioner of Customs, Salem as early as on 14.02.2019. As against the aforesaid order of dismissal, the petitioner appears to have gone on appeal before the Income Tax Appellate Tribunal, which dismissed the appeal as not maintainable by order dated 18.12.2019. This order has attained finality as on date. Thus no challenge would lie to a demand for interest under Section 220(2) of the Act and hence, this Writ Petition is dismissed at the admission stage itself.
- 2021 (5) TMI 770 - DELHI HIGH COURT
Assessment order u/s 143(3) r.w.s.144B - a notice under Section 143(2) was issued followed by several notices under Section 142 (1) - a request for accommodation was made by the petitioner on 27.04.2021, wherein a reference was made to the CBDT circular dated 24.04.2021, whereby, the limitation for passing the assessment order had been extended till 30.06.2021 - HELD THAT:- Once respondent no. 1 issued a show cause notice-cum-draft assessment order calling upon the petitioner to file its objections qua the same, this argument cannot be taken on behalf of respondent no. 1 in view of the fact that the impugned show cause notice-cum-draft assessment order dated 22.04.2021 has brought about a variation in the returned income of the petitioner. Therefore, for the foregoing reasons, we are inclined to allow the writ petition. It is ordered acco....... + More
- 2021 (5) TMI 739 - BOMBAY HIGH COURT
Centralization of the cases - Transfer of case from one tribunal to another i.e from ITAT Bangalore and ITAT Mumbai - Transfer of cases u/s 127 - Institution of cases - Assessment u/s 153A - search and seizure action carried out in the business premises of the petitioner under section 132 was invalid as no satisfaction note was recorded prior to the search and seizure as is the requirement under section 132 - HELD THAT:- Though provisions of the Civil Procedure Code, 1908 may not be applicable to the Act as well as to proceedings before the Tribunal, nonetheless as a matter of principle, we can advert to section 20 thereof, which says that every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant or in the case of multiple defendants, each of the defendants resides or carries on business or pers....... + More