|
Advanced Search Options
Income Tax - Case Laws
Showing 1 to 20 of 753 Records
-
2023 (2) TMI 1402
Application filed seeking modification of the order [2023 (2) TMI 1401 - ORISSA HIGH COURT] - HELD THAT:- The order dated 1st February 2023 passed in W.P.(C) No.2544 of 2023 is modified/corrected and be read as under:-
“1. The memo of appearance filed by Mr. S. S. Mohapatra, learned Senior Standing Counsel for the Opposite Parties-Revenue Department is taken on record.
2. In view of the order passed by this Court on 1st December, 2022 in a batch of writ petitions of which W.P.(C) No.9191 of 2022 (Kailash Kedia v. Income Tax Officer) was a lead matter and the subsequent order dated 10th January, 2023 passed in W.P.(C) No.36314 of 2022 (Shiv Mettalicks Pvt. Ltd., Rourkela v. Principal Commissioner of Income Tax, Sambalpur), the Court declines to entertain the present writ petition, but leaves it open to the Petitioner to raise all grounds available to the Petitioner in accordance with law including the grounds urged in the present petition at the appropriate stage as explained by the Court in those orders.
3. The writ petition is disposed of in the above terms.”
Issue urgent certified copy of this order as per rules.
-
2023 (2) TMI 1401
Reopening of assessment u/s 147 - notice issued to the Petitioner-Assessees u/s 148-A(1)(b) - scope of extended time limit by TOLA, 2021 - HELD THAT:- In view of the order passed by this Court on Kailash Kedia [2022 (12) TMI 188 - ORISSA HIGH COURT] was a lead matter and the subsequent order in Shiv Mettalicks Pvt. Ltd., Rourkela [2023 (5) TMI 366 - ORISSA HIGH COURT] the Court declines to entertain the present writ petition, but leaves it open to the Petitioner to raise all grounds available to the Petitioner in accordance with law including the grounds urged in the present petition at the appropriate stage as explained by the Court in those orders.
-
2023 (2) TMI 1400
Reopening of assessment u/s 147 - notice issued to the Petitioner-Assessees u/s 148-A(1)(b) - challenge to order passed u/s 148A(d) at an intermediate stage - scope of extended time limit by TOLA, 2021 - scope to Entertain the present writ petition - HELD THAT:- In view of the order passed by this Court in Kailash Kedia v. Income Tax Officer [2022 (12) TMI 188 - ORISSA HIGH COURT] was a lead matter and the subsequent order passed in Shiv Mettalicks Pvt. Ltd., Rourkela [2023 (5) TMI 366 - ORISSA HIGH COURT] the Court declines to entertain the present writ petition, but leaves it open to the Petitioner to raise all grounds available to the Petitioner in accordance with law including the grounds urged in the present petition at the appropriate stage as explained by the Court in those orders.
-
2023 (2) TMI 1399
Maintainability of the present appeal - Unexplained source of funds for purchase of property - assessee had filed additional document to substantiate the source of funds for purchase of property - CIT(A) deleted addition - Whether the CIT (A) violated Rule 46A(1) by accepting additional evidence? - As argued AO failed to consider the documents filed by the assessee in “tapal” on the date of passing assessment order - HELD THAT:- Hon’ble Madras High Court in the case of Smt. B Jayalakshmi [2018 (8) TMI 208 - MADRAS HIGH COURT] held that where the CIT (A) on the basis of remand report from AO allowed the claim of assessee, the Revenue was not entitled to maintain an appeal before the Tribunal against the said order of CIT(A). The Hon’ble High Court while holding so placed reliance on the decision in the case of Jivatlal Purtapshi [1967 (2) TMI 8 - BOMBAY HIGH COURT].
Thus, we hold that once the AO in remand report had accepted the claim of assessee and the CIT (A) based on the remand report deleted the addition, no appeal could have been filed by the Department in respect of the said issue. Consequently, the ground no. 3 raised by the Department in its appeal is misconceived and not maintainable.
In view of our findings that ground no. 3 of appeal is not maintainable, the other two (2) grounds raised in appeal have the tax effect of Rs. 12,36,000/- which is less than the mandatory limit prescribed by the CBDT vide Circular No. 3/2018 for filing of appeal before the Tribunal. Hence, the appeal of Revenue is liable to be dismissed on account of low tax effect.
-
2023 (2) TMI 1398
Allowability of TDS in form 26AS reflected in the revised form - claim not made in the original return of income or during the assessment proceedings - CIT(A) directed the AO to allow credit of TDS if corresponding income was also shown in the ITR - HED THAT:- It is an admitted fact that for taxation purpose, the learned Assessing Officer considered the income relevant for the TDS reflected in form 26AS as revised.
When the AO considered the corresponding income and has before him all the relevant facts in the shape of form 26AS as on the date of assessment, he is duty bound to assist the assessee, if the assessee is not aware of the discrepancy in respect of the income as per books and as per form 26AS. When form 26AS along with the reconciliation of income as per books and form 26AS was produced before him, learned Assessing Officer cannot accept the income for tax purpose and refuse to allow credit of corresponding TDS. Both must go hand in hand. Appeal of the Revenue is dismissed.
-
2023 (2) TMI 1396
Revision u/s 263 - Taxability in India of amount received towards repairs and maintenance support services - as argued services were rendered outside India without any of the personnel of the assessee visiting India, hence cannot be treated as FTS under section 9(1)(vii) of the Act or under Article 12 of the DTAA - HELD THAT:- The nature of receipts, both from rendition of repair and support services as well as off-shore sale of Zebra products was examined by the Assessing Officer in assessment year 2016-17 and after thorough inquiry, assessee’s claim was accepted. In the impugned assessment year, as facts on record would reveal, the AO has conducted necessary inquiry with regard to the activities carried out by the assessee and receipts earned there from. He has called for and examined the agreements with the Indian customers. Thus, it cannot be said that the AO has not made the requisite inquiry.
Additionally, when the AO was in session of the assessment proceeding for the impugned assessment year, the assessment proceeding for assessment year 2016-17 got concluded and the final assessment order accepting assessee’s claim was available before the AO. Thus, the view taken by the AO in the impugned assessment year in not bringing to tax the receipts from repair and support services as well as off-shore sales were consistent with the view taken by the Assessing Officer in the final assessment order passed for assessment year 2016-17, in pursuance to the directions of learned DRP. Thus, in these circumstances, it can very well be held that the view taken by the Assessing Officer, though, may not be the only view on the issue, but, is a possible view.
That being the case, the issue is highly debatable. Therefore, the only because the view taken by the Assessing Officer is not acceptable to the Revisionary Authority or does not matched with the view of the Revisionary Authority, it cannot be said that it is not a possible view.
As regards the observations of the Revisionary Authority regarding treaty shopping and non-availability of the treaty benefit to the assessee, we must observe, learned Revisionary Authority has ventured into uncharted territory without disclosing his mind to the assessee and providing an opportunity to the assessee to rebut the charges. Thus, in our view, the observations of learned CIT with regard to the assessee being an entity transposed to avail treaty benefit cannot be accepted as the assessee never got an opportunity to meet the allegations of the Revisionary Authority. Decided in favour of assessee.
-
2023 (2) TMI 1392
Validity of order passed u/s 143(3) r.w.s.144C on the non-existing amalgamating entity - HELD THAT:- The reply of the AO also does not support the case of the revenue that there was no mention of assessment year in letter dated 1/4/2020 of Hindustan Unilever limited. This is also once again not correct for the simple reason because in every communication made by the assessee at all stages of assessment proceedings, the assessee clearly in the subject matter itself mentioned Hindustan Unilever limited (legal successor to GlaxoSmithKline consumer healthcare limited). The replies submitted by the assessee are also on the letterhead of Hindustan Unilever limited and signed by officers of Hindustan Unilever limited. We have mentioned many communication above wherein the letters are addressed intimating the assessing authorities about the fact of business reorganisation on account of amalgamation. Therefore, the arguments advanced by the AO and the secretary of learned dispute resolution panel are not acceptable.
Facts in the case of decision of PCIT V Mahagun Realtors Limited [2022 (4) TMI 347 - SUPREME COURT] was of no indication given to the assessing authority about amalgamation and return was also filed pursuant to the notice suppressing the facts of amalgamation demonstrating the non-existent entity as the real entity on which assessment was to be made.
Thus, we quash the assessment order passed for assessment year which were passed in the name of GlaxoSmithKline consumer healthcare limited (amalgamating company) instead of in the name of Hindustan Unilever limited (amalgamated company) despite timely and in sufficient manner giving the intimation of the scheme of amalgamation of amalgamating company with amalgamated company. Thus, when the assessment orders were passed, amalgamating company was non-existent entity, therefore not a person, who can be assessed under the income tax act. Thus, the orders passed by AO are illegal, and not valid. Decided in favour of assessee.
-
2023 (2) TMI 1391
Disallowance of depreciation on goodwill raised by the assessee post demerger - whether goodwill is not covered under the definition of intangible assets u/s 32? - HELD THAT:-Gains arising on transfer of a capital asset in a scheme of amalgamation/demerger to the amalgamated/resulting company being an Indian Company is exempt.
Depreciation to amalgamated company and amalgamating company in the year of amalgamation and depreciation to demerged company and the resulting company in the year of demerger shall be apportioned in the ratio of the number of days for which the assets were used.
By the virtue of proviso to Section 32(1), the depreciation in the hands of the assessee is allowable only to the extent, as if, demerger has not taken place. Therefore, the assessee being a demerger company cannot be allowed depreciation on the assets created as a consequence of the scheme which is more than the deprecation allowable earlier entity. Amalgamation and demerger are by nature meant for better business purposes and are generally revenue neutral. Appeals are hereby dismissed.
-
2023 (2) TMI 1390
Addition made u/s 14A - Expenditure incurred in relation to income not includible in total income - AO has made disallowance of administrative expenses which was deleted by CIT(A) - HELD THAT:- Admittedly, the assessee has made huge investments and has earned exempted income to the tune of Rs. 1,29,82,706/- only. The decision for making the investments in the shares is a very complex decision which are generally taken by the top management. Likewise, a lot of research is done before taking the decision for making the investments which is generally carried out by the staff. Similarly, in a board meeting the expenses on refreshment, travelling, patrol and stationary are generally incurred. The services of the accountants are also used to record the necessary transactions in the books of accounts. The books of accounts are generally audited and therefore the services of the auditors also utilized inrelation to the investment made by the company. Thus, the argument of the learned AR is not acceptable that there was no expense incurred with respect to the impugned investments. Accordingly, we hold that the disallowance made by the AO on account of administrative expenses in pursuance of the provisions of rule 8D is correct and as per the provisions of law.
The investments which have yielded the dividend income in the year under consideration should only be considered for the purpose of making the disallowance under section 14A read with rule 8D of Income Tax Rule. We draw support and guidance from the judgement of Vision Finstock Ltd. [2017 (7) TMI 1277 - GUJARAT HIGH COURT] - Decided against assessee.
Addition on account of preliminary expenses u/s 35D - AO was found that the assessee has claimed deduction on account of preliminary expenses amortized for the issue of QIP shares - HELD THAT:- As relying on Metrocom Industries Ltd. [2016 (7) TMI 1374 - GUJARAT HIGH COURT] we hold that the expenses claimed by the assessee are eligible u/s 35D of the Act. Hence, the ground of appeal of the Revenue is hereby dismissed.
Disallowance of deduction u/s 80-IA(4) - whether the assessee is acting as a developer or works contractor? - HELD THAT:-Assessee who is only engaged in the activity of development of infrastructure facility is eligible to claim the deduction u/s 80IA(4)
We have analyzed one contract/agreement with the government on sample basis. However, the reasons given in the contract before us shall also be applied in all the contracts which was subject to the deduction under section 80-IA(4) of the Act. In view of the above, the grounds of appeal of the Revenue with respect to the admissibility of the claim of the assessee under section 80-IA (4) of the Act are hereby dismissed.
Principle of consistency - Once the revenue admitted assessee as developer under the same facts and circumstances, then in subsequent year on same fact and circumstances principal of consistency should be applied.
Whether interest income is to be excluded on gross basis or net basis while the computing the deduction u/s 80IA(4)? - We hold that only net interest income should be excluded while the computing the eligible income u/s 80IA(4) of the Act. Hence, the ground of appeal of the Revenue is hereby dismissed.
CIT(A) confirming the action of learned AO in re-computing deduction u/s. 80IA(4) by allocating expenditure of head office etc to different eligible units - Hon’ble Supreme Court held in the case of CIT vs. Sterling Foods [1999 (4) TMI 1 - SUPREME COURT] that there must be for the application of the words "derived from" a direct nexus between the profits and gains and an industrial undertaking. Sections 80-I and 80-IA also use the expression "derived from". If there must be a direct nexus between the profits and gains and an industrial undertaking, it must follow equally that there must be a direct nexus between an industrial undertaking and the expenses which are sought to be apportioned/attributable to it. Expenses which do not relate to an industrial undertaking/unit under consideration and they relate to other units or to the head office of the assessee, cannot be taken into consideration while computing the deduction under the said provisions.
There is no specific finding by the AO and the Ld. CIT(A) about the nexus of allocated expenses with the eligible unit. In the absence of any nexus between the allocated expenses with the eligible unit, the AO cannot allocate such expenses. Hence, the CO of the assessee is allowed.
Estimation of income - bogus purchase - CIT(A) confirming/restricting 25% disallowance - HELD THAT:- As in case of non- existent parties from whom the purchases are shown to have been made, the most logical approach would be that only part of such purchases can be disallowed, in the cases where the corresponding sales are treated as genuine, or alternatively the profit embedded in such sales can only be brought to tax. Therefore, what can be taxed in such transactions is profit element embedded in such alleged non genuine purchases and the entire or peak amount of such purchases cannot be treated as bogus.
Thus, we find that it is fair and just to restrict the addition to an extent being 12.5% of the bogus purchases. See case of Ratangiri Stainless(p) Ltd. [2017 (4) TMI 402 - ITAT MUMBAI]
Addition on account of ESOP expenses - assessee has issued 25,00,000 equity shares at a price of Rs. 50/- per share to the eligible employee of the company as per the ESOP scheme - AO disallowed the same by observing that expenses on ESOP debited to Profit & loss accounts is not an expenditure incurred wholly and exclusively for the purpose of the business - HELD THAT:- We have carefully considered the order passed in the case of Biocon Ltd. [2013 (8) TMI 629 - ITAT BANGALORE] where it has been held that ESOP compensation expenditure is not a notional expenditure but an allowable expenditure under Section 37(1) - object of issuing of shares at a lower issue price than the market price to the employees under ESOP must be taken into consideration and thereby it cannot be treated as short receipt of securities premium but a cost on account of compensation to the employees. Thus, principally the claim on account of deduction of ESOP compensation is allowable. Decided in favour of assessee.
-
2023 (2) TMI 1388
Receipt of compensation along with interest on compulsory acquisition of its land - claim of assessee towards exemption on this is by way of reference to provisions contained in Section 96 of the RFCTLAAR Act, 2013 read with CBDT Circular no. 36/2016, dated 25/10/2016.
HELD THAT:- It is not a case where an exemption has been claimed u/s 10(37) of the Act as observed by ld. AO. The only objection of ld. AO is that exemption is not available to assessee, it being a company not covered under the definition as contained in Section 10(37) of the Act as it is available only to assessees having status of “individual” or “HUF”. We note that Section 96 of the RFCTLAAR Act, 2013, provides that no income-tax or stamp duty shall be levied on any award or agreement made under this Act except u/s 46 and no person other than a specified person u/s 46(1) of the RFCTLAAR Act, 2013, shall be liable to pay any fee for copy of the same.
CBDT Circular no. 36/2016, dated 25/10/2016 in para 3 states that exemption provided u/s 96 of the RFCTLAAR Act, 2013 is wider in scope than exemption provided under the existing provisions of the Act.
CBDT Circular no. 36/2016, dated 25/10/2016 provides that in absence of specific provisions in the Income-tax Act, 1961, award under the RFCTLAAR Act, 2013, in the hands of land losers, both for agricultural and non agricultural land is tax free, both under normal and MAT provisions, under the Act.
No reason to interfere with the findings of ld. CIT (A) directing ld. AO to delete the addition made in this respect. Accordingly, grounds taken in this respect are dismissed.
Disallowance made towards salary expenses - CIT (A) has meritoriously dealt with the issue after going through the material placed on record for which, we do not find any reason to interfere with the same. Accordingly ground taken in this respect is dismissed.
Disallowance of donation expenses claimed in the profit and loss account, it is a fact that assessee had suo moto added it back while computing its income and, therefore, no disallowance is called for in this respect as held by ld. CIT(A). Before ld. CIT(A), assessee has made a fresh claim of deduction u/s 80G of the Act in respect of donation made by it. Ld. CIT (A) after verifying the documents in this respect has held it to be allowable, though claimed for the first time before him. For this, we do not find any reason to interfere in the finding given by the ld. CIT(A). Accordingly, ground taken in this respect is dismissed.
-
2023 (2) TMI 1386
Denial of exemption u/s. 11 - assessee, a company formed and registered u/s. 8 of the Companies Act, 2013 (corresponding to sec. 25 of the Companies Act, 1956), i.e., for carrying out public charitable objects, registered as a charitable institution u/s. 12A - turnover, extending to almost the entirety of the gross receipt, as against the cap of 20% thereof, it did not fall to be covered u/s. 2(15), as amended - HELD THAT:- Every business, by employing people, as indeed sourcing goods/services, promotes employment, both directly and indirectly, as also the skill-set required for the same. It cannot, however, for that reason, be regarded as ‘charitable’, assigned a specific meaning in law. Basic to a claim of providing relief through sourcing, i.e., the assessee’s case in fine, is, a legal obligation in its respect apart, a better value transfer to a class of farmers on a regular basis, both absent/unshown, which could also further it as regards it's business being not a pure commercial exercise, favourably impacting it qua income application for Objects 1 & 2, where shown.
There is, in view of the foregoing, nothing to hold that the assessee’s trading business is being run for the benefit of the poor, the sub-stratum of it’s case, much less as part of it’s mandate. It’s claim for exemption u/s. 11 on the profits of the said business, constituting the primary source of it’s income for the relevant years, cannot, accordingly, be upheld, and stands rightly denied by the Revenue.
Assessee has filed a compilation of case law, which were not referred to during hearing and, accordingly, not responded to by the other side. The same, accordingly, do not form part of the Tribunal’s record.
This explains our non-reference thereto, which though stand browsed to find as not in conflict with anything stated herein so as to impact our adjudication, which is based on the facts borne out by the record; the first legal principles; and the settled law in the matter. Decided against assessee.
-
2023 (2) TMI 1382
Miscellaneous Application u/s 254 - seeking the recall of order passed by this Tribunal [2022 (5) TMI 1407 - ITAT PUNE] on the ground that the ground of appeal no. II Non-TP Issues-2 & 3 remain un-adjudicated - HELD THAT:- The assessee is correct to the extent that the ground of appeal no. II Non-TP Issues – 2 & 3 remain un-adjudicated. However, the contention of the assessee that the ground of appeal no. II Non-TP Issues-2 & 3 were covered by the decision of the Co-ordinate Bench of this Tribunal in assessee’s own case for the assessment year 2011-12 [2021 (9) TMI 139 - ITAT PUNE] required to be examined.
Thus it is a fit case to recall the appeal for the limited purpose of adjudication of the ground of appeal no. II Non-TP Issues-2 & 3.
Miscellaneous Application filed by the assessee stands allowed.
-
2023 (2) TMI 1380
Reduction of share capital - disallowance of capital loss claimed by holding that there is extinguishment of rights of 153340900 shares - whether no such extinguishment of rights is made out by the assessee as required u/s 2(47) and there is no reduction in face value of share? - HELD THAT:- Undisputed facts are, pursuant to the order passed by the High Court of Bombay, number of shares has been reduced to 9988. As significant to note that the face value of the share has remained same at Rs. 10/- even after the reduction.
AO’s view that the voting power has not changed as the percentage of assessee’s share of 99.88% has remained unchanged is untenable because if the shares are transferred at face value, the redeemable value would be Rs. 99,880/- whereas the value of 14,95,44,130 number of shares would have been Rs. 1,49,54,41,300/-.
ITAT has rightly followed authority in Karthikeya V.Sarabhai [1997 (9) TMI 2 - SUPREME COURT] with regard to meaning of transfer by holding that there was no transfer within the meaning of that expression contained in Section 2(47) - Decided in favour of the assessee.
-
2023 (2) TMI 1378
Reopening of assessment - Period of limitation to issue notice issued u/s 148A(b) - scope of notices issued u/s 148 of the new regime between July and September 2022 - Application of TOLA to the Income Tax Act after 1 April 2021 - HELD THAT:- As in case of Keenara Industries Private Limited [2023 (3) TMI 104 - GUJARAT HIGH COURT], where this Court on the issue of limitation has allowed the plea of petitioner and quashed the notices for the A.Y. 2013- 14 and A.Y.2014-15 issued by the respondent, this petition is also allowed applying the very reasonings without elaborating the same.
Resultantly, the petition is allowed quashing and setting aside the notice issued u/s 148 alongwith the order u/s 148A(d) of the self-same date.
-
2023 (2) TMI 1375
Addition u/s 40A - purchase of bio-mass and for transport payments - cash payments to three parties in a single day is in excess of sum of Rs. 20,000/- - HELD THAT:- AO has brought out clear facts to the effect that there is no obligation on the part of the assessee to make payment towards transportation charges. Further, the assessee itself has accepted the fact that payment of transportation charges was the responsibility of the supplier and in fact, whatever amount paid to three parties has been debited to supplier’s account. Therefore, we are of the considered view that findings and facts recorded by the Tribunal in earlier assessment year does not apply to the facts of the present case.
No error in the reasons given by the Ld.CIT(A) to confirm the addition made towards cash payments u/s. 40A(3) - Decided against assessee.
-
2023 (2) TMI 1374
Exemption u/s 10(37) - exemption of compensation received on account of compulsory acquisition of agricultural land by state Govt. - date of transfer of the impugned land - use of land being not under agriculture cultivation for 2 years to the award of compensation and date of transfer of land - denial of claim simply because the impugned land is situated within municipal limits - HELD THAT:- The provisions of section 10(37) are meant specifically for the purpose of removing hardship to a land holder, whose lands are situated in an area specified in section 2(14)(iii)(a)&(b). These lands which were originally used for agricultural purpose, if retained by the owner would continue to have been used for agricultural purpose. In our view, the AO was not right in coming to the conclusion that if a land falls within the discretion of capital asset u/s 2(14)(iii)(a), then it would be a transfer of land which is not agricultural and therefore, one should not look at the provisions of section 10(37) at all.
The impugned order of the assessment passed by the AO u/s 143(3) of the Income tax Act, 1961 holding that the capital gain tax is chargeable on the compulsory acquisition of the urban land by resorting to the provisions of section 45(5) is unsustainable in view of the provisions of amended sub-section (37) of section 10 of the Income Tax Act, 1961.
In the present case where assessee's agricultural land was compulsorily acquired by following entire procedure prescribed under Land Acquisition Act, and at the time of acquisition in 1948, the said land was under agriculture cultivation merely because compensation amount was awarded vide order of State Govt. determining final award (order dated 08.01.2014) and disbursed the said amount vide Government order dated 19.05.2014 which was after 01/01/2014 cannot change the status as not falling beyond municipality limits at the time of acquisition and as such would not change character of acquisition from that of compulsory acquisition to voluntary sale so as to deny exemption under section 10(37) to assessee. Decided in favour of assessee.
-
2023 (2) TMI 1373
Addition u/s 68 - whether the assessee was able to establish the genuineness of the gift received by the assessee? - whether the assessee has been able to establish the identity and creditworthiness of the donor? - HELD THAT:- CIT(A) in his order the fact that the donor had a NRE account in ING Vysya Bank and the said Bank directly addressed to the AO confirming about the NRE account maintained by the donor and a cheque for Rs. 25 Lacs in favour of the assessee was debited to the NRE account.
CIT(A) also notes that the assessee has furnished his business details directly to the AO and on the other hand, AO has failed to bring any positive material on record to show that the gifts are not genuine and there was no material brought on record by the revenue to suggest any nexus between the assessee and the gift received by his wife. Thus, on appreciation of the facts the CIT(A) allowed the appeal.
Tribunal on its part re-appreciated the factual position and noted that the identity of the donor has been well established by the documents produced and thus the assessee has discharged the initial onus cast upon the assessee to establish the identity, genuineness as well as the creditworthiness of the donor.
The burden shifts on the revenue to establish it otherwise. This having not been done by the revenue, we are of the view that the CIT(A) as well as the Tribunal rightly granted relief in favour of the assessee.
-
2023 (2) TMI 1372
-
2023 (2) TMI 1371
Non-issuance of the show-cause notice and the draft assessment order as mandated u/s 144B - HELD THAT:- Section 144B has been inserted into the Act vide Taxation and other laws (Relaxation and Amendment of certain provisions) Act, 2020, which contemplates for respondent to issue draft assessment order while assessing the income of the assessee in the faceless manner. It is a statutory mandate to issue the show-cause notice.
It is not in dispute that in the instance case, neither the draft assessment order nor the show-cause notice has been issued. It seems that this is a serious flow in implementing the statutory provisions also results into the breach of the principle of natural justice, as the petitioner has been not only provided the opportunity of responding to the draft assessment order and the show-cause notice, even opportunity of personal hearing is missing. It would be to refer to the relevant findings and observations in case of Gandhi Reality (India) (P) Ltd. [2021 (12) TMI 313 - GUJARAT HIGH COURT].
Resultantly, this petition is allowed, quashing and setting aside the order of assessment passed as well as the notice of penalty and other consequently order for Assessment Year 2018-19.
-
2023 (2) TMI 1370
TDS u/s 194J - Honorarium/Remuneration paid to the teachers in the Government colleges - nature of fee for professional serves liable to TDS or not? - HELD THAT:- While requiring the persons responsible for paying to a resident any ‘fee for professional services’ to deduct the TDS at a specified rate, by way of explanation it is provided that for such purpose, the "professional services" shall mean services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified by the Board for the purposes of section 44AA or of this section.
We are in agreement with the observations of the learned CIT(A) that the words ‘fee for professional services means’ will not leave any scope for interpretation and the categories mentioned therein as on the date are exhaustive by the explanation itself or by the notification of CBDT and by necessary implication, such an exhaustive definition excludes the payments made to the contract teachers in intermediate colleges. Apart from this, the payment to none of the contract lectures exceeds Rs. 5 lakh and based on the slab rates and rebate under section 87A of the Act there would be no tax liability in the hands of the teachers.
We are of the considered opinion that the payments made to the contract teachers do not answer the description of ‘fee for professional services’.
........
|
9911796707
