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- 2003 (7) TMI 697 - ITAT ALLAHABAD
... ... ..... love affection. These are not the requirements of valid gift. Therefore, the grounds are infructuous. Considering the above discussion and the authorities of Hon';ble Supreme Court, Allahabad High Court and Gujarat High Court we are of the considered view that the assessee has been able to discharge initial onus in this case. The Assessing Officer has not brought any evidence on record, except merely observing certain facts without any evidence, therefore, the Assessing Officer has not rebutted any evidence of the assessee in this regard. Merely the jurisdictional Assessing Officer has not sent the confirmation report, would not be a ground to reject the explanation of the assessee or to take any adverse presumption. The Assessing Officer did nothing thereafter in obtaining the report from the concerned Assessing Officer of the donors. Therefore, the CIT(A) was justified in allowing the appeal of the assessee. We uphold the finding and dismiss the appeal of the Revenue.
- 2003 (7) TMI 649 - ITAT KOLKATA
... ... ..... cent from the payments to MEP. However, that would not stand in the way of the assessee claiming in the proceedings under section 263 that no tax was at all chargeable on the payments made to MEP. The only restriction upon the assessee is that the relief cannot be granted to the assessee in respect of 5 percent levy directed by the Assessing Officer, which has not been challenged. As a result of cancellation of the order under section 263, the order passed by the Assessing Officer will get restored and the liability at 5 percent shall stand. Therefore, the contention advanced on behalf of the assessee that it is permissible for them to challenge the liability of tax in respect of the remittances notwithstanding the fact that the liability as such was not challenged originally is accepted in the light of the aforementioned decision of the Supreme Court and the objection of the Revenue rejected. Let the matter be placed before the regular Bench for announcing the majority view.
- 2003 (7) TMI 648 - ITAT GAUHATI
... ... ..... of the aforementioned enunciated law laid down by the hon rsquo ble Supreme Court, the exercise for determination of the actual amount adjustable under section 43(6)(c) shall have to be gone into by the Assessing Officer after giving an opportunity of being heard to the assessee. Prima facie it appears that most of the assets have been destroyed. So however, the learned Judicial member has left it open for the assessee to establish that part of the claim has been received in respect of the partially damaged assets. The Assessing Officer shall have to do that exercise. I, therefore, agree with the learned Judicial Member that the claim received by the assessee has got to be adjusted under section 43(6)(c) to the extent the same has been received in respect of the destroyed assets. In final analysis, I agree with the reasoning as well as the conclusion arrived at by the learned Judicial Member. Let the matter be placed before the regular Bench for announcing the majority view.
- 2003 (7) TMI 647 - ITAT MUMBAI
... ... ..... ssessee took the loan. The purpose was not tax evasion. There was no animus to defile the provision of law. It was to revive a sick company in which the assessee was interested. The assessee proved the bona fide beyond the shadow of doubt. Once the bona fide is proved, what remains is only procedural default, which is of a venial nature. ldquo de minimis non curat lex rdquo (law takes no notice of trivialities) is the well-known tenet of law. The procedure should be the maid and not the mistress of the legal justice. Taking into consideration the entire conspectus of the case I am of the opinion that there existed a reasonable cause for accepting the cash loans. As such, the assessee may be exonerated from the rigour of section 271D of the Act. In my opinion, the learned Accountant Member was correct in deleting the penalty. As such, I concur with his order. The matter will now go before the regular Bench for deciding the appeal in accordance with the opinion of the majority.
- 2003 (7) TMI 646 - ITAT HYDERABAD
... ... ..... o the interests of the Revenue rdquo must be read in conjunction with an erroneous order. As such, in my opinion, the order of the Assessing Officer was erroneous and prejudicial to the interests of the Revenue. In regard to the verification of the claim under section 80-I of the Act, the learned Accountant Member did not discuss the issue in his order. As such, on this count there is no dispute. For a dispute, there should be con flicting orders. There is no conflict on this aspect. As such, this issue is not coming within the ambit of the jurisdiction of the Third Member. I, there fore, decline to comment over the same. In my opinion, the conditions precedent for assuming jurisdiction under section 263 of the Act did exist in the facts and circumstances of the present case. As such, I am inclined to agree with the view taken by the learned Judicial Member. The matter will now go before the regular Bench for deciding the appeal in accordance with the opinion of the majority.
- 2003 (7) TMI 639 - ITAT DELHI
... ... ..... there was no difference between an individual who is partner or the karta of the HUF, representing the HUF. When the ratio of the Hon rsquo ble Supreme Court is applied to the instant case it is clear that whether a person is owner of the premises in the individual capacity and he was partner of the firm in the representative capacity and the firm was occupying the premises of the individual for the business purposes, such individual will be deemed to have occupied the premises as partner. The issue is therefore squarely covered by the decision of Hon rsquo ble Supreme Court. Respectfully following the same, we hold that the assessee was entitled to the benefits of the exemption provided in section 22 of the Act and as the premises are deemed to have been occupied by the assessee in its business, the question of calculating any ALV does not arise. Accordingly the addition sustained by the CIT(A) is deleted. 12. In the result appeal directed by the assessee is partly allowed.
- 2003 (7) TMI 638 - ITAT MUMBAI
... ... ..... t that the award made by the Coffee Board was now known by the close of the accounting period was of no relevance. While deciding the issue, the Hon rsquo ble Kerala High Court has taken into consideration the decision of the Hon rsquo ble Supreme Court in the case of A. Gajapathy Naidu (supra) on which the ld. CIT(A) has placed heavy reliance and had distinguished on the facts. 10. In view of the above and in view of various other submissions made by the appellant before the lower authorities and submissions made by the ld. counsel before us, we are of the view that the amount of Rs. 84.06 lakh is to be assessed in the assessment year 1991-92. Accordingly, the Assessing Officer is directed to amend his order for the assessment year 1991-92 and re-compute the deduction under section 80HHC including the amount of Rs. 84.06 lakh. Consequently, the addition made in the assessment year 1992-93 is also deleted. 11. In the result, both the appeals filed by the assessee are allowed.
- 2003 (7) TMI 637 - ITAT NAGPUR
... ... ..... sessee as per letter dated 23rd March, 2001, was sufficient in discharging the onus put on the assessee by the provisions of law in this respect. Both the authorities seem to have been swayed away only by the fact of huge cash found at the time of search. If the revenue authorities were doubtful with regard to the assessee rsquo s case of having procured the loans, it was incumbent upon them to make necessary enquiry and to bring cogent material on record to disprove the assessee rsquo s case but nothing has been done. 6. In view of the above facts and circumstances, I am of the opinion that the assessee having discharged her onus, there was no reason to disbelieve the assessee rsquo s explanation that the said cash was as a result of loans taken from the four parties and consequently considering the same as assessee rsquo s undisclosed income. Addition of Rs. 53,434 is deleted and the order of the CIT(A) is set aside. 7. In the result, the assessee rsquo s appeal is allowed.
- 2003 (7) TMI 636 - ITAT DELHI
... ... ..... should be imposed for failure to perform a statutory obligation is matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circum-stances. Decision of Gujarat High Court in the case of CIT v. Harsiddh Construction (P.) Ltd. 2000 244 ITR 417 cited by the ld. counsel fully supports the proposition being cited by us. Section 273B speaks of reasonable cause to be shown by the assessee. The reasonableness of the cause would, in our opinion, have to be considered in the context of the facts and circumstances of the case, the conduct of the assessee, the nature and gravity of the default and the quantum of penalty liable to be imposed. In the instant case, we feel that looking to the conduct of the assessee as well as the nature of the default being technical and venial, the impugned penalty sustained by the ld. CIT(A) is liable to be cancelled. We would accordingly cancel the impugned penalty and allow the appeal of the assessee.
- 2003 (7) TMI 635 - ITAT JODHPUR
... ... ..... gift. 6. The facts of this case are identical and there is also no evidence or material on record to establish that the actual sale consideration resembles with the Sub-Registrar rsquo s certificate in the case of the assessee. 7. The ld. DR has conceded that the decision in question has been rendered by the Coordinate Bench of this Tribunal, but still argued that the order of the Assessing Officer should be restored. 8. After going carefully through the facts of this case as well as the facts of the case relied upon by the ld. AR, we are of the opinion that the facts of both the case are identical and the issue is squarely covered by the decision of ITAT, Jodhpur Bench in the case of Vinod Kumar Hissaria (supra). As a result we dismiss the appeal of the department. In the light of the above finding, the cross objection filed by the assessee also becomes infructuous. 9. In the result, appeal filed by the department and the cross objection filed by the assessee are dismissed.
- 2003 (7) TMI 634 - ITAT MUMBAI
... ... ..... /Mum./98 rendered on 12-12-2002 , (pages 98 to 110 of the paper book). He has contended that 10 per cent of incentive amount should be reduced from assessee rsquo s indirect expenses. He has contended that S.B. has allowed 100 per cent of the 10 per cent of the incentive as deduction from indirect cost. As against the above, the Ld. DR of revenue has contended that the judgment of Special Bench is not applicable to this case on facts here is the issue is of claiming of 10 per cent of incentive of indirect expenditure. 15. This ground has been taken by assessee in the alternative. In view of my decision on ground No. 1 being in favour of assessee, this ground does not survive so I need not render, any specific decision on this ground. 16. Ground No. 3 has not been pressed by the Ld. AR of assessee during arguments. So the same is dismissed accordingly. 17. Ground No. 4 is general. 18. In the result, assessee rsquo s appeal No. 1365/Mum./03 is partly allowed as indicated above.
- 2003 (7) TMI 309 - ITAT PUNE
... ... ..... refore, justified in setting aside the assessment in this regard and directing the AO to recompute the undisclosed income. Our conclusions to the 4th issue is that the action of the CIT was justified. 44. We therefore hold that the order in respect of which the CIT sought to invoke his jurisdiction under s. 263 was not erroneous in so far as the non-taxing of enhanced compensation and non-taxing of interest on enhanced compensation as undisclosed income of the block period. The order of the CIT revising the order of the AO by directing the AO to treat these incomes as undisclosed income is therefore set aside. The order of the CIT in so far as it relates to setting aside the order of the AO on the ground that the AO has not carried out necessary verification and directing the AO to make the necessary verification and thereafter compute the undisclosed income for the block period is however sustained. The appeal of the assessee i.e., ITA No 748/PN/2002 is thus allowed in part.
- 2003 (7) TMI 306 - ITAT RAJKOT
... ... ..... sideration was not inadequate. 15. The learned counsel has drawn our attention to a number of decisions in which it has been held that existence of inadequate consideration is a condition precedent for applying s. 4(1)(a). If the consideration which passed between the parties can be considered to be reasonable or fair, it cannot be considered inadequate. Therefore, considering the difference between the DVO rsquo s valuation and the actual consideration together with the circumstances described above, we are of the view that the consideration was not inadequate and hence s. 4(1)(a) was not applicable. 16. Since we are allowing the assessee rsquo s appeal on the above grounds, we do not deem it necessary to deal with the arguments of the learned counsel regarding the applicability of s. 45(c) and the argument that capital gains as offered by the assessee were accepted by the Revenue. The order of the CGT(A) is reversed. 17. In the result, the appeal of the assessee is allowed.
- 2003 (7) TMI 304 - ITAT NAGPUR
... ... ..... on or any further evidence is required by the AO for satisfying with the claim of the assessee for any deduction, he is bound to follow the procedure prescribed under s. 143(2) and it is not open to him to disallow such claim under s. 143(1)(a). As such, considering the facts of the case and keeping in view the decision of Hon ble Bombay High Court in the case of Khatau Junkar, we are of the view that the disallowance on account of sales-tax liability made by the AO by rectifying the intimation issued under s. 143(1)(a) was outside the scope of prima facie adjustment permissible under the said provisions as further clarified by the CBDT vide its Circular No. 689, dt. 24th Aug., 1994, and the AO was not justified in making the same vide his order passed under s. 154(1)(b). The learned CIT(A), therefore, was fully justified in cancelling the same and his impugned order, in our opinion, does not call for any interference. 6. In the result, the appeal of the Revenue is dismissed.
- 2003 (7) TMI 301 - ITAT MADRAS-B
... ... ..... hat the assessee claimed bad debts to the tune of Rs. 7.60 lakhs relevant to, the assessment year, 1998-99. This claim was made on the basis of a suit filed against the debtors. Considering the fact that the suits were filed in 1998 and not during the block period and considering that the books of account were not proper and complete, he disallowed the claim. The CIT(A) referred to section 36(1)(vii) of the Act which was amended by Direct Laws (Amendment) Act effective from 1-4-1989, which allowed deduction in regard to any bad debt written off. Considering the change in law, the CIT(A) upheld the claim. The learned departmental representative could not place before us any material to suggest that the suits were decreed in favour of the assessee to suggest that the debts had not become bad. We, therefore, do not interfere with the order of the CIT(A) on this point. 8. In the result, the appeal filed by the assessee is allowed in part while that of the Department is dismissed.
- 2003 (7) TMI 298 - ITAT LUCKNOW
... ... ..... sessment order. 83. In the present case, the ITO had not examined the individual accounts of the depositors. Since the books of account maintained by the assessee were not examined on this issue, it cannot be said that the AO conducted inquiry into the matter. Since the matter was not involved in appeal, the learned CIT(A) could not examine this issue and as held earlier, the question of merger on this issue does not arise. Thus, on the point of interest, the order of the CIT is fully justified and exercise of jurisdiction by him under s. 263 is found to be legally sustainable. These grounds are, therefore, rejected. 84. In view of our findings on various issues and grounds of this appeal as recorded above, the impugned order of the learned CIT passed under s. 263 is set aside in respect of the first issue relating to deposits and the order on the second issue relating to provision of liability on account of interest is upheld. 85. In the result, the appeal is partly allowed.
- 2003 (7) TMI 297 - ITAT LUCKNOW
... ... ..... n the basis of objection of internal audit party. In the absence of any reason to believe by the AO, reopening is not justified and it is settled proposition of law that in case reopening is not valid what subsequently follows is also not sustainable. The Bench is also not expected to decide the other grounds also, because the Hon rsquo ble Calcutta High Court in the case of Rawatmal Harakchand vs. CIT 1978 CTR (Cal) 157 (1981) 129 ITR 346 (Cal), has laid down that once the initiation of reassessment proceedings is held to be invalid, whatever follows thereafter must also necessarily be invalid and proper course for the Tribunal in such circumstances was not to consider the merits at all. Respectfully following the above, we are of the view that the assessee to succeed on the additional ground raised before us and the appeal is allowed as reassessment proceedings are invalid and reassessment orders for both the assessment years stand quashed. 12. Appeals are allowed as above.
- 2003 (7) TMI 296 - ITAT LUCKNOW
... ... ..... ears from the date of transfer of shares, the assessee has not constructed any house over the plot in question and even today the assessee had not been able to show that construction of residential house on the plot was completed. In view of this, alternative plea of the assessee is not going to help the assessee. 17. The cumulative effect of the discussion above is that mere purchase of residential plot is not sufficient compliance of provisions of section 54F. What was expected from the assessee was to prove on record that the assessee had purchased or constructed a house within the period specified in section 54F, which the assessee had failed to prove on record. The Assessing Officer rightly rejected the claim of the assessee and order of Ld. CIT(A) is also on the correct footings, which requires no interference. The ground Nos. 1 to 5 are rejected. 18. Ground No.6 was not pressed at the time of arguments from the Ld. counsel for the assessee. 19. The appeal is dismissed.
- 2003 (7) TMI 293 - ITAT JODHPUR
... ... ..... under s. 234B. We have heard the rival submissions. It was held by the Hon rsquo ble Patna High Court, Ranchi Bench in the case of Uday Mistan Bhandar and Complex vs. CIT (1997) 137 CTR (Pat) 376 (1996) 222 ITR 44 (Pat) that no interest can be charged in the absence of specific order by the AO for charging interest. This judgment of Patna High Court was affirmed by the Hon rsquo ble Supreme Court in the case of CIT vs. Ranchi Club Ltd. (2000) 164 CTR (SC) 200. Similar finding has also been given by the Hon rsquo ble Delhi High Court in the case of CIT vs. Kishan Lal (HUF) (2002) 258 ITR 359 (Del) and the jurisdictional High Court in the case of CIT vs. Autolite (I) (P) Ltd. (2002) 179 CTR (Raj) 341 (2002) 256 ITR 303 (Raj). We, therefore, direct deletion of interest under s. 234B of the Act as there was no specific mention to charge interest by the AO. 13. In the result, the appeal of the Department is dismissed whereas the cross- objection of the assessee is allowed in part.
- 2003 (7) TMI 292 - ITAT JODHPUR
... ... ..... ng done because of a non-deliberate delay . In this case the Hon rsquo ble Supreme Court has held that the Court should adopt rational, commonsense and pragmatic approach, and reliance can also be placed on the judgment of the apex Court in the case of Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh and Ors. (1997) 118 ITR 326 (SC). In this case it was held that there is no presumption that every person knows the law. It is often said that every one is presumed to know the law, but that is not a correct statement there is no such maxim known to the law. 5. Therefore, having regard to the facts of the case that the appellant was a class IV employee, he was not conversant with the income-tax law and he was not being assisted by a legal adviser, we are satisfied that there was sufficient cause for not presenting the appeal within the specified period of limitation. Therefore, we admit this appeal. The registry is directed to fix the appeal in due course of time.