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Income Tax - Case Laws
Showing 101 to 120 of 806 Records
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2021 (9) TMI 1335 - ITAT DELHI
Unexplained jewellery - search & seizure operation u/s 132(1) - HELD THAT:- We find that Sh. S. C. Mittal, father-in-law of the assessee staying under the same roof, as the head of the joint family has disclosed an amount equal to the unaccounted jewellery seized belonging to the entire family as an undisclosed income. The vary purpose of centralization o f the cases of the family members is to have a comprehensive understanding and determination of undisclosed income. In the instant case , since the undisclosed income determined tallies with the undisclosed income declared in the return, no separate addition in the hands of the assessee is called for - Appeal of the assessee is allowed.
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2021 (9) TMI 1334 - ITAT MUMBAI
Treatment of assessee trust as an Association of Persons (AOP) - Allowance of expenses made by the assessee for protection preservation and insurance expenses and management fees from such investment activity upon redemption of the principal amount of Security Receipts(SR) - HELD THAT:- Assessee was established under SARFAESI Act following guidelines of RBI and therefore, its validly was beyond doubt. Further. Sec. 61 to 63 does not imply that the right of revocation should be without any conditions. The terms of trust deed made it clear that the contributions was revocable and therefore, the income was to taxed in the hands of SR holders as per the provisions of Sec. 61 to 63 of the Act. The assessee could not be called an AOP since there was no agreement amongst beneficiaries inter-se. The beneficiaries were mere recipients of income earned by the trust. Therefore, the income was not taxable in hands of the assessee but it was taxable in the hands of the contributors.
The coordinate bench, in revenue’s appeal titled as CIT V/s Scheme A1 of ARCIL CPS 002 XI Trust [2020 (9) TMI 465 - ITAT MUMBAI] dismissed the appeal with the findings that the assessee was a valid trust. Since it was revocable Trust, the provisions of Sec. 61 to 63 were applicable and the assessee could not be assessed as AOP. The income was to be taxed in the hands of the SR holders. Since the respective shares were known since inception, it could not be considered as indeterminate Trust. Finally the appeal of the revenue was dismissed.
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2021 (9) TMI 1333 - ALLAHABAD HIGH COURT
Assessment u/s 144 - Denial of principles of natural justice - petitioner had already availed the statutory remedy of revision - HELD THAT:- Undisputedly, in the facts of the present case, there is no violation of fundamental rights of the petitioner or there is a violation of principle of natural justice as the petitioner admits, it was issued notices during the assessment proceedings and it had responded to the same. Whether an order under Section 144 of the Act could have been passed in the facts and circumstances claimed by the respective parties, may involve factual issues. Even otherwise, that objection may lead to an inference of irregular exercise of power but not inherent lack of jurisdiction. Such objections may be adequately addressed by the statutory authorities as well.
On their face, such objections do not always commend to the Court to offer interference when ever such objections are raised. In the present case, the petitioner having already filed a revision prior to filing of the writ petition, we are not inclined to lift to bar of alternate remedy. For that reason, the other decision of the Supreme Court relied by the learned Senior Advocate in the case of Harbans Lal Sahania [2002 (12) TMI 564 - SUPREME COURT] is also of no help to the petitioner.
As to the last decision relied by learned Senior Advocate is of the Gurgaon Realtek Limited vs. National Faceless Assessment Centre, Delhi [2021 (6) TMI 433 - DELHI HIGH COURT] we find, in that case, a remedy of appeal had been availed by the assessee. However, the Delhi High Court lifted the bar of alternate remedy taking note of the ground of lack of jurisdiction on account of limitation. In that case, the Delhi High Court reached a conclusion that the assessment order could not have been passed under Section 143 (3A) and 143 (3B) on 15.04.2021 as that date fell after the date 31.03.2021. Here we are unable to reach that conclusion. The facts are otherwise. There is no bar of limitation being pressed into service.
The other contention of petitioner that the preliminary objection has been raised for the first time today by means of the counter affidavit and that had not been pressed earlier cannot be accepted for the simple reason that the order sheet does not offer any assistance in that regard. The matter does not appear to have been heard on merits nor such hearing could be inferred from the perusal of the order sheet. At the same time, the order sheet only indicates that on the first date itself, the revenue sought and was granted time to file counter affidavit. Only contention advanced appears to have be as to the time sought and granted by the Court. However, it does not appear that the preliminary objection was either raised or waived at that stage.
Matter has remained on the fresh list and the Court cannot act unmindful on the statutory provisions and the conduct of the parties. Here, the assessment order is dated 24.12.2019. The revision itself was filed on 17.12.2020 and the writ petition has been filed six months thereafter in June, 2021. The alternate remedy had already been availed before the writ petition came to be filed. Therefore, notwithstanding the fact that such preliminary objection had not been raised on the first hearing, the court cannot ignore on the admitted fact that before approaching the Court, the petitioner had already availed the statutory remedy of revision. To entertain such a writ petition would also affect the judicial policy of the Court which it consistently follows of not entertaining such writ petitions, where alternative remedy has already been availed.
Being discretionary in nature, the Court remains as consistent as is humanly possible. No exceptional circumstance is made out as may commend to the Court to lift the bar of alternate remedy. Merely, because the petitioner society is a body of lawyers regularly practising before this Court cannot make out a case of exception.
As to the last submission of learned Senior Counsel that by virtue of proceedings under Section 270 A of the Act having been dropped, the petitioner's revision became infructuous, we may only observe that the submission is ill-conceived. The remedy of Revision is a statutory remedy. Once availed, it may never be adversely affected by the conduct of the respondent authority, unless it has a beneficial impact on the assessee.
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2021 (9) TMI 1331 - ITAT SURAT
Revision u/s 263 by CIT - validity of assessment order passed u/s 143(3) r.w.s. 153A - whether the requisite jurisdiction necessary to assume revisional jurisdiction is there existing before the Pr. CIT to exercise his power? - HELD THAT:- Assessing Officer’s role while framing an assessment is not only an adjudicator.AO has a dual role to dispense with i.e. he is an investigator as well as an adjudicator; therefore, if he fails in any one of the role as afore-stated, his order will be termed as erroneous. We note that in these group cases, the assessing officer has issued notice under section 142(1) of the Act and in response to notice under section 142(1) of the Act, the assessee has submitted documents and evidences which were examined by the assessing officer and while examining the assessing officer has applied his mind also. On this finding of fact by us, we cannot term the assessment order passed by the AO u/s 153A/143(3), as erroneous.
There was as such no allegation of ‘no enquiry’ or ‘lack of enquiry’ or verification, because the Ld. Pr. C.I.T. himself found all the details/evidences in the assessment record, i.e. well within the A.O.’s possession and what he alleged was about the plausible view taken by the A.O. as against his perception and understanding on the same set of facts and documents. The main allegation of ld PCIT in his order under section 263, was that assessing officer has not made further inquiry. It means inquiry has been made by the assessing officer. The ld Counsel at this juncture submitted before the Bench that there is no end of further inquiry, the assessing officer whenever needed made further inquiry also. It is the domain of the assessing officer to decide, whether further inquiry is needed or not in a particular case. After getting the documents and information from the assessee, during the assessment proceedings, the assessing officer has examined the documents and evidences and applied his mind, and he made further inquiry also whenever he thinks fit that further inquiry is necessary and then framed the assessment under section 143(3) r.w.s. 153A of the Act.
Section 142(1) of the Act speaks of inquiry before assessment and gives immense power to the Assessing Officer for conducting enquiry. Therefore, the Assessing Officer, under section 142(1)(ii) and (iii) of the Act, can ask the assessee almost any information which he things necessary for passing assessment and even if Ld. PCIT has such results of enquiries, the resultant order cannot be subjected to revision proceedings. Therefore, the very initiation of proceeding u/s 263 of the Act by the Ld. Pr. C.I.T. is in violation of the settled position in law. When the conditions precedent for invoking revisional power u/s 263 of the Act on the facts and in the circumstances of the case are not fulfilled in the case of the assessee, the subsequent action in passing the order u/s 263 on such invalid proceeding becomes null and void.
As during the course of the scrutiny assessment proceeding, the assessee furnished full details of land at Khator village, investments, amount advanced and amount received, balances shown in ledger accounts and books of accounts, details of capital gains, trading activities, party-wise break-up of debit and credit entries/balances of sundry debtors and creditors, audited books of account, notes of the financial statements, , bank details, quarterly VAT returns etc., which were as well filed before the Ld. Pr. C.I.T. during 263 proceeding. The A.O. also raised further queries to establish genuineness of sales, purchases, advances received and paid, investments in land, gift, cash deposit in bank out of assessee`s own fund, debtors and creditors etc, during the year. Considering all these facts and hearing the A.R. of the assessee on various dates, the impugned assessment order under section 143(3) r.w.s.153A was passed by the assessing officer. Therefore, the order so passed by the assessing officer is based on reasonable and plausible view which cannot be termed as erroneous.
There was no allegation by the Ld. revenue authorities that the evidences produced were fictitious or invented, thus accepted the authenticity of the same. Such an order cannot be called erroneous and prejudicial to interests of revenue only because the A.O. made the assessment without discussing such details therein - there was no allegation by the Ld. revenue authorities that the evidences produced were fictitious or invented, thus accepted the authenticity of the same. Such an order cannot be called erroneous and prejudicial to interests of revenue only because the A.O. made the assessment without discussing such details therein - Decided in favour of assessee.
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2021 (9) TMI 1329 - ITAT BANGALORE
Deduction u/s. 80P(2)(a)(i) denied - treating the Appellant as a co-operative bank - primary reason to deny the benefit of deduction u/s 80P was that the assessee was only registered under the Karnataka Souhardha Sahakari Act, 1997, and therefore, was not a cooperative society within the purview of section 2(19) - HELD THAT:- As decided in case of Swabhimani Souharda Credit Co-operative Limited [2020 (1) TMI 831 - KARNATAKA HIGH COURT] a society registered under the Karnataka Souharda Sahakari Act, 1997 is also entitled to the benefit of section 80P of the I.T.Act, the matter is restored to the files of the A.O. The A.O. is directed to examine the claim of deduction u/s 80P of the I.T.Act afresh and decide the issue in accordance with law.
Thus we set restore the issue to AO to examine the claim u/s. 80P of the Act as directed by the Tribunal- Appeal filed by the assessee is treated as allowed for statistical purposes.
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2021 (9) TMI 1327 - ITAT HYDERABAD
Revision u/s 263 by CIT - AO had accepted the assessees’ section 80P(2)(d) deduction claim(s) regarding interest income(s); derived from deposits made in SBI/Nationalised Bank(s) as eligible for the said relief - HELD THAT:- Consideration to rival pleadings qua correctness of the learned PCITs foregoing revision direction and find no reason to uphold the same. This is primarily for the reason that hon’ble jurisdictional high court decision in Vavveru Co-operative Rural Bank Ltd.[2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT] holds that a co-operative society’s income derived from deposits in nationalized banks/SBI is also eligible for 80P deduction. Their lordships have duly taken into consideration the hon'ble apex court’s foregoing decision M/S. THE TOTGARS´ COOPERATIVE SALE SOCIETY LIMITED [2010 (2) TMI 3 - SUPREME COURT]. We therefore hold that both the AO therein had not committed any error in not disallowing the assessees’ section 80P(2)(d) deduction claims in issue qua the respective interest income derived form fixed deposit in nationalised banks.
PCITs’ revision direction under challenge herein forming subject matter of these two appeals stand reversed on the very analogy therefore. We lastly quote hon'ble apex court’s landmark decision Malabar Industrial Co. Ltd.[2000 (2) TMI 10 - SUPREME COURT] that an assessment has to be both erroneous as well as causing prejudice to the interest of revenue; simultaneously before the CIT or the PCIT; as the case may be, sets section 263 revision mechanism in motion. And that it is not each and every assessment which would attract revision proceedings but only those wherein the Assessing Officer has not taken one of the two possible views. We thus restore both the assessments herein as a necessary corollary.
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2021 (9) TMI 1322 - ITAT DELHI
TP Adjustment - Comparable selection - HELD THAT:- We find that while “Just Dial” is a search engine for multifarious activities and is a search engine using different platforms, dealing with multiple products whereas the assessee is a captive liason and marketing service provider for its AE. Hence, we hold that “Just Dial” cannot held to be a right comparable.
Working Capital Adjustment - With regard to capital adjustment, we find that the ld. DRP allowed the working capital adjustment, however the AO failed to take the cognizance of the same while giving effect to the ld. DRP directions. Hence, the AO is directed to rectify the or der to that extent.
Risk Adjustment - TPO denied risk adjustment on the grounds that the assessee has not clearly shown that the comparables had actually undertaken risks - whether the risk of having a single customer is equivalent to the marketing and technical risks attached to the comparable? - HELD THAT:- In the instant case, it can be seen that the assessee has not encountered the risk of having a single customer, whereas the same cannot be said as regards the comparables. The comparables were dealing in open market and therefore, they were prone to the marketing and technical risks. They would invariably incur certain expenditure on marketing services and also to safeguard the technical inputs used by them. In such a case, the risk encountered by the assessee cannot be said to be the equivalent risks attached to the comparables. The risk attributed to the assessee by the TPO is an anticipated risk whereas the risk attributed by the assessee to the comparables is an existing risk. In such situation, we direct that the risk adjustment be accorded to the net margin of the comparables for bringing them on par with the assessee company.
Administrative Support Services - whether in fact the services were rendered and availed by the assessee and if so, whether the mark-up of 5% can be considered as comparable with the market averages? - Culling from the details filed and arguments of both the parties, we find that there is no dispute about availing of the services. The evidences include the e-mails, invoices, agreements submitted - The assessee has also provided details of cost allocation - Hence, it cannot be said that the services have not been provided to the assessee. With regard to the mark-up of 5% paid by the assessee, we find that the economical analysis submitted by the assessee is acceptable at the same time, the comparable namely, Pay Cheques. Inc. showing the OP/OC of 56.12% is being excluded owing to the extraordinary profits. Taking into consideration, the remaining comparables, we find that the arithmetic mean is more than the 5% mark-up charged from the company. Hence, we hold that no adjustment is called for while determining the ALP on account of payment for Intra Group Services.
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2021 (9) TMI 1321 - ITAT HYDERABAD
Condonation of delay - HELD THAT:- By all possibilities, no one can deny that there are delays in filing the appeal. Every person has a right to appeal and specifically in the case of company, which depends in the efficiency of various individuals. In the given case, the junior accountant has not brought to the notice of senior management. One cannot deny the above possibility.
Merely because the company is professionally managed, we cannot assure that they cannot make any mistake. There is saying that there is dark under the light. Therefore, in the interest of justice, we restore the matters back to the file of the CIT(A) with a direction to condone the delays in filing these appeals before him and decide various grounds of appeal of the assessee on merits. Accordingly, the CIT(A) is directed to afford reasonable opportunity of being heard to the assessees and thereafter decide the appeals on merits. See MST. KATIJI AND OTHERS [1987 (2) TMI 61 - SUPREME COURT]
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2021 (9) TMI 1319 - ITAT JODHPUR
Late payments towards EPF and ESI under section 36(1)(va) - amount deposited after the due date but before the due date of filing of return of income - AO made the additions of the impugned amounts for the reasons that the assessees did not deposit the amounts of employees contribution as per the provisions of section 36(1)(va) - HELD THAT:- As decided in HARENDRA NATH BISWAS VERSUS DCIT, CIRCLE-29 KOLKATA [2021 (7) TMI 942 - ITAT KOLKATA] do not accept the Ld. CIT(A)’s stand denying the claim of assessee since assessee delayed the employees contribtion of EPF & ESI fund and as per the binding decision of the Hon’ble High Court in Vijayshree Ltd. [2011 (4) TMI 63 - ITAT KOLKATA] u/s 36(1)(va) of the Act since assessee had deposited the employees contribution before filing of Return of Income. Therefore, the assessee succeeds - also see SALZGITTER HYDRAULICS PRIVATE LIMITED VERSUS ITO, WARD 3 (1) HYDERABAD [2021 (6) TMI 1059 - ITAT HYDERABAD] and MOHANGARH ENGINEERS [2021 (8) TMI 563 - ITAT JODHPUR].
Thus the impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI & PF prior to filing of the return of income u/s 139(1) of the Act, in both the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted. - Decided in favour of assessee.
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2021 (9) TMI 1317 - ITAT KOLKATA
Delayed payment of employees’ contribution towards PF & ESI - Scope of amendment/explanation brought in by Finance Act, 2021 - HELD THAT:- It is an admitted fact which has not been disputed by either by the AO or the Ld. CIT(A) that the assessee has remitted the employees’ contribution towards PF & ESI before filing of return u/s. 139(1) of the Act.
Having taken note of this fact and also the fact that this Tribunal has already taken a view that the amendment brought in by Finance Act, 2021 on this issue has been held to be prospective in nature in the case of Shri Harendra Nath Biswas [2021 (7) TMI 942 - ITAT KOLKATA], therefore, we reiterate the same view that the amendment/explanation brought in by Finance Act, 2021 with effect from 01.04.2021 on this issue is prospective; and taking note that the relevant assessment years are 2019-20 and 2018-19, the ibid explanation brought in by Finance Act, 2021, cannot be used/applied to unsettle the settled position of law passed by the Hon’ble jurisdictional High Court in the case of Vijayshree Ltd. [2011 (9) TMI 30 - CALCUTTA HIGH COURT] since there is no retrospective legislative over-ruling. Therefore, we are inclined to allow the appeals of the assessee by following our own decision in Harendra Nath Biswas (supra). - Decided against revenue.
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2021 (9) TMI 1314 - SC ORDER
Allowable expenditure u/s 37(1) - expenditure incurred towards 'sales promotion expenses' and 'other selling expenses' by providing gifts and freebies to Doctors and Medical Practitioners - expenditure contrary to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - scope of amendment - applicability of explanation to Section 37(1) - CBDT Circular No.5/2012, dated 1st August 2012 - HC held expenditure on such items prior to the Amendment have already been allowed in favour of the Assessee and they have been disallowed after 14.12.2009 and find no error in the order passed by the Tribunal - HELD THAT:- Order reserved.
The parties are at liberty to file their written submissions within a week.
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2021 (9) TMI 1304 - PUNJAB AND HARYANA HIGH COURT
Rectification of form 3 - matter was disposed of as the senior standing counsel for the respondents has informed that after verification, it has been clarified that there was no wrong claim by the assessee and credit for this challan has been given in AU 2007-2008 - HELD THAT:-Today, again learned counsel for the respondents states that on merits the claim of the petitioner has to be accepted but there is some technical glitch. However a period of more than one month has elapsed. In these circumstances, respondents are directed to finalize the issue before the next date of hearing.
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2021 (9) TMI 1294 - ITAT DLEHI
Penalty u/s 271(1)(c) - Defective notice u/s 274 - assessee argued for not recording his clear satisfaction and without mentioning any specific charge against the assessee in the notice issued for imposition of penalty - HELD THAT:- It is now very well settled by Hon’ble Apex Court in the matter of CIT vs. SSA’s Emerald Meadows [2016 (8) TMI 1145 - SC ORDER] wherein it is held that in such cases, notice issued for assuming jurisdiction u/s. 271(1)(c) should be unambiguous - Decided in favour of assessee.
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2021 (9) TMI 1286 - DELHI HIGH COURT
Addition u/s 68 - unexplained credit - Onus to prove - identity and creditworthiness of the lenders and genuineness of the loans proved or not? - HELD THAT:- Keeping in view the fact that CIT(A) had not considered the appellant’s defence with regard to identity and creditworthiness of lenders and genuineness of the loans in question, this Court remands the matter to the CIT(A) to consider the appellant’s said defence under Section 68 of the Act - the finding given by the CIT(A) in the impugned is set aside.
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2021 (9) TMI 1285 - DELHI HIGH COURT
Income accrued in India - PE in India - Whether assessee has a business connection in India under Section 9(1)(i) of the Income Tax Act, 1961 and has a PE, in the form of M/s L.G. Electronics India Ltd. under Article 5(1) & 5(2) of DTAA between India and Korea? - HELD THAT:- As LG Electronics India Limited [2020 (11) TMI 209 - ITAT DELHI] covers the case of the present Respondent-assessees for the assessment years under consideration wherein the CIT(A) in the 201 proceedings held that none of the AEs, apart from LG Korea, had PE in India.
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2021 (9) TMI 1284 - DELHI HIGH COURT
Reopening of assessment u/s 147 - Registration under Section 35(1)(ii) - Expenditure on scientific research - Sum paid to a research association which has as its object the undertaking of scientific research - substantial question of law or fact - as per revenue assessee had not filed the list of donors along with auditor’s report for Assessment Year 2007-08 and as such had failed to comply-with the precondition mentioned in Rule 5D(4) of the Income Tax Act - HELD THAT:- As original assessment was completed under Section 143(3) of the Act and there was no failure on the part of the appellant to disclose fully and truly all material facts necessary for assessment - the statement of donations as received was very much available before the Assessing Officer at the time of original assessment and consequently the assumption of jurisdiction under Section 147 of the Act after four years based on the ground that it was not filed along with the audit report is bad in law and has been assumed on technical ground not mandatory in nature.
In the opinion of this Court, the stipulation under Rule 5D(4) of the Act that the statement of donations shall be filed along with audit report is not a mandatory condition and is considered to have been complied with the moment the details of donation were filed before the Assessing Officer prior to the completion of assessment.
Keeping in view the concurrent findings of fact by the CIT(A) and the Tribunal, this Court is of the view that the said findings should not be lightly interfered with. In fact, the Supreme Court in the case of Ram Kumar Aggarwal & Anr. vs. Thawar Das [1999 (8) TMI 1008 - SUPREME COURT] has reiterated that under Section 100 CPC the jurisdiction of the High Court to interfere with the orders of the Courts below is confined to hearing on substantial question of law and interference with finding of the fact is not warranted if it involves re-appreciation of evidence - there is a difference between question of law and a “substantial question of law”. Consequently, this Court finds that there is no perversity in the findings of the CIT(A) and ITAT. Accordingly, the present appeal is dismissed.
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2021 (9) TMI 1281 - BOMBAY HIGH COURT
Transfer of case u/s 127 - transfer proposed is from one commissionerate to another commissionerate - reasonable opportunity denied - HELD THAT:- Sub Section (1) of Section 127 is not applicable to the case at hand because the transfer proposed is from one commissionerate to another commissionerate. Sub Section 1 applies only where a transfer is proposed to be made from one AO subordinate to the same Commissioner to any other AO also subordinate to the same Commissioner. In this case, the transfer was proposed to be made by one Commissioner to an Assessing Officer under another Commissioner and both AO are not subordinate to the same Commissioner.
Reasonable opportunity would mean that the show cause notice or the intimation issued should contain such details that would enable the assessee to know the reasons for which the case is being transferred. In the intimation notice dated 20th June 2019, apart from stating “you are connected to this group” there are no other details as to how petitioner is connected to the Salagaocar Group. The word “connected” has varied and a wide meaning. Respondents ought to have mentioned in the show cause notice how petitioner was connected to Salagaocar Group of companies. The purpose of show cause notice is to enable a party to effectively deal with the case made out by respondent. If a vague show cause notice is given without specifying anything or the grounds, then it can be held that reasonable opportunity of showing cause against an order of transfer being made by the Commissioner was not given, because the assessee would be totally unaware of the grounds which prompted the Commissioner to arrive at prima facie conclusion that the power u/s 127 (2) of the Act was required to be exercised. Issuance of show cause notice is the preliminary step which is required to be undertaken before giving opportunity of hearing under Section 127 (2)
Also show cause notice issued is under Section 127 (1) when all applicable provisions are under Section 127 (2) (a) of the Act. Even in the order impugned, respondent no.1 states that the assessee was provided opportunity under Section 127 (1) but he exercised his powers under Sub Section 2 of Section 127 - that also shows non application of mind by respondent no.1. Respondent no.1 also should have dealt with all the points raised by petitioner in his reply, which he has failed to do. Moreover, the show cause notice has been issued by one Income Tax Officer (HQ), International Taxation – 3 and not by the Commissioner of Income Tax, who was exercising his power. On that ground also the show cause notice itself is defective.
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2021 (9) TMI 1280 - BOMBAY HIGH COURT
Benefit of the VSV Act - Rejection of declaration and undertaking filed under the provisions of Direct Tax Vivad Se Vishwas Act 2020 (the VSV Act) as there is no disputed income as the return filed by assessee has been accepted in assessment proceedings and as assessee has disputed interest charged u/s 234A/B/C and interest charged is mandatory and there is disputed income - HELD THAT:- The VSV Act was enacted to provide for resolution of disputed tax and for matters connected therewith and incidental thereto. In the VSV Act, there is no provision to exclude interest charged under Section 234A, 234B or 234C of the Act as stated in the order impugned.
The disputed interest is defined under Sub Clause h (ii) of Sub Section 1 of Section 2 to mean “the interest determined in any case under the provisions of the Income Tax Act, 1961 where an appeal has been filed by the appellant in respect of such interest”. Appellant means under Clause a (i) of Sub Section 1 of Section 2 “a person in whose case an appeal or a writ petition or special leave petition has been filed either by him or by the Income Tax Authority or by both, before an appellate forum and such appeal or petition is pending as on the specified date”. Therefore, petitioner was eligible to file this declaration under the VSV Act for the disputed interest that was charged under Section 234A or Section 234B or Section 234C. The concerned authority was, therefore, not correct in rejecting the declaration of petitioner for reasons quoted above.
Thus the order of rejection issued by respondent no.1 is bad in law. Respondent no.1 is directed to process the declaration cum undertaking filed by petitioner under the provisions of VSV Act.
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2021 (9) TMI 1275 - MADRAS HIGH COURT
Rights of the writ petitioner to prefer an appeal against the impugned Assessment Order i.e., appeal under Section 246A - Statutory appeal - Alternate remedy - Point on Section 80B of IT Act was not raised before the Assessing Officer - HELD THAT:- There is no pre-deposit condition and the statutory appeal is under Section 246A of IT Act. This Court is informed that Appellate Authority is CIT(A), Coimbatore. This Court is also informed that there is no cap qua 'Condonation of Delay' ('COD') with regard to filing of the appeal and it is at the discretion of the Appellate Authority. The most important and significant aspect of the matter even according to the impugned order is, a show-cause notice dated 04.03.2021 has been sent to the writ petitioner /assessee and writ petitioner has not sent any reply or explanation. Owing to this, the respondent has concluded that the Assessee has no objection qua addition/disallowance made in the draft Assessment Order.
That point that is being canvassed turns on Section 80B of IT Act was not raised before the Assessing Officer though an opportunity was given to the writ petitioner and writ petitioner did not avail the same. In this view of the matter, nothing prevents the writ petitioner from raising this very point in an appeal. The right of the writ petitioner to raise this point before the Appellate Authority is preserved. This Court has repeatedly held that alternate remedy, though not a absolute rule i.e., a rule of discretion and self imposed restraint qua writ court has to be applied strictly when it comes to fiscal statutes as long as exceptions such as NJP violation are not attracted.
Captioned writ petition is, therefore, disposed of holding that the rights of the writ petitioner to prefer an appeal against the impugned Assessment Order i.e., appeal under Section 246A of IT Act to Commissioner of Income Tax (Appeals), Coimbatore, Appellate Authority raising all points available to the writ petitioner including the points raised in the instant writ petition are preserved. If there is any delay in preferring the appeal, it is open to the writ petitioner to seek COD and if such an COD prayer is made, Appellate Authority shall decide the same on its own merits and in accordance with law.
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2021 (9) TMI 1273 - KARNATAKA HIGH COURT
TDS u/s 194H - Principal-Agent relationship - discount given on sale of prepaid services, SIM and recharge vouchers by the cellular operator (assessee) to its distributors - whether definition of ‘Commission or brokerage’ does not make the principal- Agent relationship sine qua non for the application of Section 194H? - HELD THAT:- As decided in BHARTI AIRTEL LTD. [2014 (12) TMI 642 - KARNATAKA HIGH COURT] the order passed by the authorities holding that section 194H of the Act is attracted to the facts of the case is unsustainable. Therefore, the substantial question of law is answered in favour of the assessee.
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