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Income Tax - Case Laws
Showing 81 to 100 of 968 Records
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2019 (1) TMI 1876 - SC ORDER
Addition on account of undisclosed income as disclosed during the course of survey u/s. 133A - assessee contended that the firm is following Project Completion Method of accounting and the income would be offered to tax as and when the final sale deeds are registered - Commissioner of Income Tax (Appeals) deleted such addition which was confirmed by the Tribunal - as per HC no error in the view of the Tribunal - HELD THAT:- SLP dismissed.
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2019 (1) TMI 1875 - ITAT INDORE
Penalty levied u/s 271(1)(c) - Defective notice - non specification of charge - A.O. framed assessment u/s 153A r.w.s. 143(3) - HELD THAT:- We find that the notice issued for levy of penalty dated 24.3.2015 do not contain the specific charge - The revenue has not brought any contrary material suggesting that a valid notice was served on the assessee for initiating proceedings u/s 271(1)(c)
A.O. ought to have made specific charge, moreover the notice u/s 271(1)(c) of the Act dated 24.3.2015 is ex-facie defective and contrary to the judgement of the Hon'ble jurisdictional High Court in the case of PCIT-I Vs. Kulwant Singh Bhatia [2017 (8) TMI 1375 - ITAT INDORE]- Decided in favour of assessee.
Penalty u/s 271AAB - assessee could not specify and substantiate the manner in which the undisclosed income has been derived - payments in cash for material purchases - search & seizure operation was carried out in the business as well as residential premises of the appellant group, Indore including the assessee along with other concerns/business associates - HELD THAT:- It is recorded by the A.O. that during the course of search evidences related to payment in cash for material purchase was found and on examination of books of accounts, it was found that these amounts were not accounted for by the assessee. It is also stated by the assessing officer that through this letter Shri Deepak Kalra stated that these payments were made out of income from undisclosed sources and admitted these amounts as additional income from undisclosed sources. This fact is not rebutted by the assessee by placing any contrary material on record. Since there is no ambiguity under the law and the assessee has not placed any material which could suggest that these payments in cash for material purchases was recorded in books of accounts before search was conducted. The grounds raised in this appeal are dismissed and order of the Ld. CIT(A) is affirmed.
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2019 (1) TMI 1874 - ITAT LUCKNOW
Levy of penalty under section 271(1)(c) - non specification of charge - defective notice u/s 274 - HELD THAT:- From a perusal of this notice, it is crystal clear that the charge for which penalty is proposed to be levied under section 271(1)(c) of the Act, whether for concealment of income, or for furnishing of inaccurate particulars of income, is not specific. The law mandates that the authority who is proposing to impose penalty shall be certain as to the basis on which the penalty is being levied and the notice must reflect that specific reason, so that the assessee, to whom such notice is given, can prepare himself regarding the defence which he would like to take to support his case. This is even enshrined in the principles of natural justice and as has been upheld by Hon'ble Apex Court and other High Courts. See S M/S SSA'S EMERALD MEADOWS [2016 (8) TMI 1145 - SC ORDER] and M/S MANJUNATHA COTTON AND GINNING FACTORY & OTHS., M/S. V.S. LAD & SONS, [2013 (7) TMI 620 - KARNATAKA HIGH COURT]
Thus we arrive at the considered view that the show cause notice, which has not specified the charge and limb under which the penalty is proposed to be levied, is void ab initio and the consequent penalty imposed on the basis of such notice is, therefore, illegal and bad in law and liable to be deleted. We, therefore, direct deletion of the penalty. - Decided in favour of assessee.
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2019 (1) TMI 1872 - ITAT DELHI
Stay applications - assessee sought extension of the stay already granted and extended time to time - HELD THAT:- The stay orders have been lastly extended vide orders dated 06/07/2018 and 13/07/2018. The record shows that the delay in disposal of the appeals is not attributable to the assessee. Therefore, the stay already granted against outstanding demand are further extended for a period of six months in each case or disposal of the appeal, whichever may expire earlier, subject to the same terms. Stay applications are allowed.
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2019 (1) TMI 1870 - ITAT MUMBAI
Adjustment made on account of income tax on brand usage royalty - HELD THAT:- We find that this issue is covered by the co-ordinate Bench decision of this Tribunal in assessee’s own case for assessment year 2005-2006 in [2018 (12) TMI 1515 - ITAT MUMBAI] application made by the assessee to RBI for brand usage agreement specifically mentions that the royalty to be remitted is net of taxes. Further, the approval was received from the RBI to remit the royalty on brand usage by the assessee @ 1 % net of taxes. Considering the brand usage agreement vis-à-vis the approval granted by RBI, it can be safely inferred that taxes were liability of J&J India under the terms of agreement. The assessee has entered into a commercial arrangement with J&J US and it has been so arranged that the payment of taxes have to be borne by the assessee being a commercial arrangement, the same should not be questioned while calculating arms length price. Reliance by the assessee on the decision of the Tribunal in the case of Dresser Rand India Pvt. Ltd. [2012 (10) TMI 127 - ITAT MUMBAI] is well founded. Considering the entire facts in totality in the light of the brand usage agreement and the approval of the RBI, the findings of the Ld. CIT(A) is set aside. The AO is directed to delete the addition.
Adjustment made on account of payment of royalty on traded finished goods made by the assessee to Johnson & Johnson, USA - HELD THAT:- As perused the orders of the lower authorities and the material evidence brought on record in the form of paper book. In assessee's appeal, we have already held that the agreements between J&J India and J&J USA for payment of royalty has to be considered in the light of the approval of the RBI. We do not find any substance in the findings of the TPO that there is no need for paying royalty for technical/marketing know-how.
We also do not find any force in the findings of the TPO that this royalty is deemed to be included in Brand royalty. The Ld. CTT(A) has rightly considered the relevant clauses of the agreement between J&J India and J&J USA. We, therefore, do not find any reason to interfere with the findings of the Ld. CIT(A).
Technical know-how royalty payment at 2% / 4% instead of 1% as done by the ld.TPO - HELD THAT:- As relying on own case [2014 (2) TMI 978 - ITAT MUMBAI] payment of royalty has to be considered in the light of the agreement between the assessee and J&J USA.
Adjustment made on account of service tax paid by the assessee on know-how royalty - HELD THAT:- We find that this issue is covered by the co-ordinate Bench decision of this Tribunal in assessee’s own case for assessment year 2005-2006 in [2018 (12) TMI 1515 - ITAT MUMBAI] after considering the agreements entered into between the assessee and J&J US and also the decision in the case of Dresser Rand India P. Ltd. [2012 (10) TMI 127 - ITAT MUMBAI] that the taxes were liability of the assessee- company under the terms of agreements and accordingly disallowance made by AO were deleted. Further, we also observe that liability of payment of service tax is of recipient of services and since assessee is the receiver of services, it is the liability of the assessee company to bear service tax. Hence we hold that TPO was not justified to state that liability of bearing service tax was of assessee-company. In view of above, we hold that disallowances made by TPO on account of taxes, services tax is not justified and we direct to delete the same.
Adjustment made on account of sales and promotion expenses - HELD THAT:- Rule 10B specifically provides the procedure to be followed fordetermining Arm's Length Price. We observe that the TPO while suggesting the disallowance of 200.82 Lakhs out of the expenses incurred by assessee on publicity and sales promotion has not followed any of the method and therefore the said adjustment/disallowance suggested by TPO is outside its jurisdiction. During the course of hearing, id. DR submitted that the matter could be restored to TPO to decide afresh after considering the guidelines laid down in the case of L.G. Electronics India (P.) Ltd. [2013 (6) TMI 217 - ITAT DELHI]. Since no specific submissions were made and considering the fact that the assessee justified the payment of technical know-how royalty at the rate of 4% of net sales which is lower than Arm's length rate of 4.84% and the said fact, we have also discussed herein above in para 33 of this order, that the payment of royalty by assessee to its parent company is at Arm's Length, we do not find any justification to make the said disallowance of ₹ 200.82 lakhs as suggested by TPO towards the shares to be contributed by AE of the asses see-company. Therefore, we delete the said disallowance made by AO by allowing ground of the appeal taken by assessee.
Grand credit in respect of retained MODVAT credit relating to opening stock - HELD THAT:- CIT(A) allowed relief to the assessee by following the decision of Hon'ble High Court in Mahalaxmi Glass Works[2009 (4) TMI 182 - BOMBAY HIGH COURT] which was also followed by his predecessors in A.Y. 2003-04 & A.Y. 2004-05. Considering the consistent view on the issue which was followed by Id. CIT(A), therefore, we do not find any justification to interfere in his order.
Addition on account of payment on fees paid for legal counseling u/s 40A(2)(b) - HELD THAT:- We find that the Ld. CIT(A) has deleted the addition holding that for the payments for legal counseling, it is futile to think of comparables because counsels may not charge standard fee but may charge according to the issue involved. The Ld. CIT(A) further observed that if the AU wanted to disallow on the ground of excessive payment, he ought to have established excessiveness of the payment. This has not been done. Considering the decision of the Tribunal in assessee's own case, in the light of the observations made by the Ld. CIT(A), we do not find any reason to interfere with the findings of the Ld. CIT(A) .
Depreciation on testing equipment provided to laboratories and hospitals free of charge - HELD THAT:- Similar issue was raised in the case of assessee's sister concern, namely, NR Jet Enterprises Limited has held that depreciation should be allowed on the testing equipment provided to laboratories and hospitals free of charge as the said equipments have been provided to the laboratories and hospitals for making profit from the sale of slides. The learned Departmental Representative did not contravene this position.
Addition due to non-reconciliation of AIR data - HELD THAT:- As relying on SHRI S. GANESH [2016 (5) TMI 792 - BOMBAY HIGH COURT]assessee gave an explanation that the break-up as desired cannot be given and with regard to all payments. It is pointed out that at times, assessee receives fees directly from the clients or from the instructing Advocates or Chartered Accountants if such professionals have collected the amounts from the clients.Under these circumstances, the break-up as desired cannot be placed on record. An explanation which has been given by the assessee and accepted in the past has been now accepted by the Tribunal once again. Since it is accepted for the Assessment Year 2006-07, in the peculiar facts, in relation to the present assessee, we are of the view that this Appeal does not deserve to be entertained. It does not give rise to any substantial question of law,
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2019 (1) TMI 1869 - ITAT AHMEDABAD
Bogus LTCG - unexplained credit u/s.68 - denial of exemptions claimed u/s 10(38) - HELD THAT:- In the identical facts and circumstances, the Hon’ble ITAT Ahmedabad in the case of Ketulkumar D.Jaiswal [2017 (10) TMI 168 - ITAT AHMEDABAD] decided issue in favour of assessee stating that no direct or material evidence against the assessee to hold that the share transactions were not genuine - additions made by the AO u/s.68 are not warranted and are accordingly deleted.
In this case, transaction are made for the D-mat account and STT has also been paid. Assessee has sold his shares to authorized stock exchange and received Invoice duly paid STT on his selling shares. In our opinion, the order of the CIT(A) is not sustainable. - Decided in favour of assessee.
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2019 (1) TMI 1867 - ITAT AHMEDABAD
Ex-parte order - HELD THAT:- We find that in spite of service of notices by the Registry neither any one appeared nor there was any adjournment application filed on behalf of assessee for the hearing on 13-08-2018. Thus, following the various decisions in the cases of Multiplan India (P) Ltd [1991 (5) TMI 120 - ITAT DELHI-D], Hon'ble Madhya Pradesh High Court in the case of Estate of late Tukojirao Holkar Vs. CWT [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] the Tribunal dismissed the appeal of assessee by passing ex parte order for non prosecution. We find that there was sufficient reason for the assessee in not appearing before the Tribunal on the said date of hearing [13-08- 2018]. Therefore, in view of submission of assessee we recall the order by allowing this Misc. Application filed by the assessee.
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2019 (1) TMI 1866 - ITAT BANGALORE
TP Adjustment - comparability - Considering R Systems International Ltd. as comparable - HELD THAT:- As rightly pointed out by the ld. AR, Rule 10(B)(4) does not exclude from consideration the data of an entity merely because its financial year is different from the financial year of the assessee.
What the Rule requires is that the data to be used in analyzing the financial results of an uncontrolled transaction with an international transaction shall be the data relating to the financial year in which the international transaction has been entered into.
So long as the data relating to the financial year is available, it matters not, if the financial year followed is different. In the case before us the data relating to the relevant financial year of R.Systems International Limited is available. We are, therefore, entirely in agreement with the decision relied by ld. AR that if the data relating to the financial year in which the international transaction has been entered into is directly available from the annual accounts of that comparable, then it cannot be held as not passing the test of sub-rule(4) of rule 10B and the same is the view taken by Hon’ble Punjab & Haryana High Court in the case of CIT Vs. Mercer Consulting (India) Pvt. Ltd.[2016 (8) TMI 1163 - PUNJAB AND HARYANA HIGH COURT]. Being so, in our opinion data relating to the assessee financial year to be interpolated and thereafter if required, it should be considered as a comparable to the assessee’s case. With this observation we remit this issue to the file of TPO for his fresh consideration.
Exclusion of Accentia Technologies Limited as comparable - main contention of ld. AR is this Accentia Technologies Ltd. is functionally not comparable to assessee, which is a BPO - The segmental data relevant to software services and product ITES are not available in the annual report. That company own intangibles. These facts were considered in the case of the coordinate bench in the case of Outsource Partners International Pvt. Ltd. [2017 (2) TMI 1410 - ITAT BENGALURU] and held that it cannot be a comparable case as in the case of assessee. Being so, we uphold the argument of ld. AR and direct the TPO to exclude the above comparable.
Exclude Fortune Infotech Limited as comparable - As discussed in earlier year this comparable Fortune Infotech Ltd. was rejected as a comparable in the case of Outsource Partners International Pvt. Ltd. Vs. DCIT [2017 (2) TMI 1410 - ITAT BENGALURU] and it was held that it cannot be a comparable. Accordingly, we direct the AO/TPO to exclude the same.
Exclusion of Jeevan Scientific Technology Limited - AR submitted that Jeevan Scientific Technology Ltd. cannot be considered as comparable to the assessee’s case as it fails service income filter of 75% as applied by the TPO. It is also submitted that DRP has itself excluded ICRA Online Ltd. as comparable but the fact that 75% of export earning filter needs to be applied as against 25% of export earning filter applied by the TPO. Therefore in our opinion these facts required to be examined by the TPO and if it is so ICRA Online Ltd. was excluded as comparable, this comparable is also to be excluded on the same basis. Accordingly, this issue is remitted to TPO for fresh consideration with this observation.
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2019 (1) TMI 1865 - ITAT, AHMEDABAD
Monetary limit for maintainability of appeal - Low tax effect - HELD THAT:- Board has provided exemptions at clause (10) of the Instructions wherein it has been provided that these instructions will not be applicable, where the Constitutional validity of the provisions of an Act/Rule is under challenge or where Board’s order, notification, instruction or circular has been held to be illegal or where Revenue Audit objection in the case has been accepted by the Department or where the addition relates to undisclosed foreign assets/bank accounts etc. We find that the present cases do not fall within the exemption clause and the tax effect is less than ₹ 20 Lacs in each appeal.
DR states the liberty may kindly be given to point out, upon necessary further verifications, and to seek recall the dismissal of appeals and restoration of the appeals in the cases (i) in which it can be demonstrated that the appeals are covered by the exceptions (ii) which are inadvertently included in this bunch of appeals, wherein the tax effect, in terms of the CBDT circular (supra), exceeds ₹ 20,00,000. None opposes this prayer; we accept the same.
We make it clear that the appellants shall be at liberty to point out the cases which are wrongly included in the appeals so summarily dismissed, either owing to wrong computation of tax effect or owning to such cases being covered by the permissible exceptions- or for any other reason, and we will take appropriate remedial steps in this regard. Appeals are dismissed as not maintainable.
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2019 (1) TMI 1863 - ITAT, JAIPUR
Penalty proceedings U/s 271D and 271E - Default u/s 269SS and 269T - HELD THAT:- It is pertinent to note that when the explanation of the assessee that the said amount was deposited by the said person in the bank account of the assessee for the purpose of taking a D.D. in favour of the Excise Department for participating in the tender of liquor shops then it would not fall in the ambit of loan or deposits as contemplated in the provisions of Section 269SS and 269T of the Act. Therefore, once it is not a loan taken by the assessee for his requirement but the explanation was accepted by the Assessing Officer that this amount was deposited by Shri Shreeram for his requirement of participating in the tender of the liquor shops then in absence of any fresh material or contrary record to show that the amount was taken as a loan by the assessee for assessee’s requirement, the penalty levied U/s 271D and 271E are not justified.
When the Assessing Officer was fully satisfied with the explanation that the amount was deposited by Shri Shreeram for the purpose of making D.D. for participating in the tender of the liquor shop then the said explanation of the assessee itself is reasonable explanation to show that the case of the assessee does not fall in the provisions of Section 269SS or 269T of the Act. Accordingly, we delete the penalty levied in both these appeals U/s 271D and 271E of the Act. - Decided in favour of assessee.
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2019 (1) TMI 1862 - MADRAS HIGH COURT
Deduction u/s 10B - Tribunal held that for the purpose of applying the formula under sub-section (4) of Section 10B, the freight, telecom charges, or insurance attributable to delivery of articles or things or computer software outside India or expenses, if any, incurred in foreign exchange in providing the technical services outside India ought to be excluded both from the export turnover and from total turnover even though the statute has provided for such exclusion only from the export turnover - HELD THAT:- This question has been resolved by a recent judgment of the Supreme Court in the case of Commissioner of Income Tax v. HCL Technologies Ltd. [2018 (5) TMI 357 - SUPREME COURT] in the instant case, if the deductions on freight, telecommunication and insurance attributable to the delivery of computer software under Section 10A of the IT Act are allowed only in Export Turnover but not from the Total Turnover then, it would give rise to inadvertent, unlawful, meaningless and illogical result which would cause grave injustice to the Respondent which could have never been the intention of the legislature.
Even in common parlance, when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well.
On the issue of expenses on technical services provided outside, we have to follow the same principle of interpretation as followed in the case of expenses of freight, telecommunication etc., otherwise the formula of calculation would be futile. Hence, in the same way, expenses incurred in foreign exchange for providing the technical services outside shall be allowed to exclude from the total turnover. Decided in favour of the Assessee and against the Revenue.
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2019 (1) TMI 1861 - ITAT PUNE
Addition u/s 36(1) or 37(1) - Disallowance made in respect of payment to unapproved gratuity fund - HELD THAT:- As decided in own case [2017 (6) TMI 1342 - ITAT PUNE] amount paid towards unapproved gratuity fund can be deducted under section 37(1) of the Act, though not under section 36(1)(v) of the Act. The amount which has been paid by the assessee towards an unapproved gratuity fund is duly allowable as deduction under section 37(1) of the Act though the assessee is not entitled to claim the deduction under section 36(1)(v) of the Act. Accordingly, the ground of appeal No.1 raised by the assessee is allowed
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2019 (1) TMI 1853 - ITAT CHENNAI
Disallowance u/s 14A r.w.r 8D - HELD THAT:- Any investments made in the subsidiary, which may not be for the purpose of earning dividend and may be for the purpose of having controlling interest therein, shall attract the provisions of section 14A read with Rule 8D.
The reliance placed by assessee on the decision of the Hon’ble Jurisdictional High Court in the case of Redignton India Ltd., [2017 (1) TMI 318 - MADRAS HIGH COURT]wherein, it was held that no disallowance could be made when no exempt income is earned by the assessee has no legs to stand once the Hon’ble Supreme Court has subsequently given a detailed judgement in the matters of section 14A of the Act in the case of Maxopp Investment Ltd. v. CIT [2018 (3) TMI 805 - SUPREME COURT] which automatically supersedes all existing decisions of the Hon’ble High Courts. In view of the above facts and circumstances, we sustain the disallowance confirmed by the ld. CIT(A). Thus, the ground raised by the assessee stands dismissed.
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2019 (1) TMI 1852 - ITAT PUNE
Bogus purchases - cash sales for less than purchase price for not producing the proof of payment to supplier - HELD THAT:- The assessee in his written submission has stated that the supplier is local supplier having registered under the MVAT. The assessee has produced before the Assessing Officer and CIT(A), purchase bills, Extract of account, quantity statement and nexus with sale bills etc. It is the contention of the assessee in the written submissions that the Assessing Officer disallowed for the reason that ‘no delivery challan’ and transport receipt were given. The Assessing Officer doubted sales as if cash sales for less than purchase price for not producing the proof of payment to supplier.
As perused the case record and written submissions filed by the assessee. Taking into consideration of entirety of facts and circumstances, we deem it fit and proper to uphold the disallowance @20% on the said purchases and Assessing Officer is directed to provide appeal effect accordingly. Hence, ground No.1 of the appeal is partly allowed.
Disallowance of commission payment - CIT(A) on the issue has observed that the commission was claimed by way of journal entry at the end of the year - HELD THAT:- We find, it is not disputed by the Revenue that broker or so called dalal, they have shown income in their return and that the assessee has also deducted TDS on such payments. Taking into consideration of entire facts and circumstances, the total disallowance is unjustified and therefore, we restrict the disallowance @20% of the total expenses. Hence, ground No.2 of the appeal is partly allowed.
Addition of interest - interest was paid on the loans taken from the banks and on the other hand, no interest was charged on loans given to the sister concerns - HELD THAT:- We find that the CIT(Appeals) stated that nexus of interest free funds is not established and funds are inter mixed. The assessee stated in the written submission that working of interest on interest free funds received and interest on interest free funds advances have been submitted before the Ld.CIT(Appeals) - As per the contention of the assessee is that it has got more interest free funds which are more than the interest free advances made, to meet the ends of justice, we confirm 20% of the said disallowance. Hence, ground No. 3 of the appeal is partly allowed.
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2019 (1) TMI 1851 - ITAT DELHI
Accrual of income in India - reimbursement of expenses by BG Exploration and Production India Limited (‘BGEPIL’) to the appellant for services rendered - As stated that the assessee is rendering services to BG Exploration and Production India Limited (BGEPIL) and BGEPIL is reimbursing expenses to the assessee, therefore, there is no income which could be chargeable to tax in India - HELD THAT:- As decided in own case for assessment years 2008-09 to 2010-11 we hold that the amount received by the assessee from BGEPIL is taxable and cannot be accepted to be reimbursement of expenses by BGEPIL to the assessee. However, the assessee’s alternate contention that the above receipt should be taxed as per provisions of section 44BB is accepted.
Thus the amount received by the assessee from BGEPIL cannot be accepted to be reimbursement of expenses by BGEPIL to the assessee and the same is taxable in India.
Payments received by the appellant from BGEPIL - taxable in terms of section 44DA of the Act as opposed to section 44BB - HELD THAT:- Section 44DA would be applicable where the income by way of royalty or fees for technical services is received from the Government or an Indian concern in pursuance to an agreement made by a non-resident or a foreign company with Government or Indian concern after 31st day of March, 2003. In the case under consideration before us, admittedly, the payment is neither received from the Government nor from an Indian concern. Therefore, Section 44DA would not be applicable and, the decisions of ITAT in assessee’s own case in earlier years holding that the income of the assessee is to be determined as per Section 44BB, would hold good. We, therefore, respectfully following the decisions of ITAT in earlier years, direct the Assessing Officer to determine the income of the assessee by applying Section 44BB.
Levying interest under section 234B - HELD THAT:- As relying on own case we hold that the assessee was not liable to pay interest under Section 234B.
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2019 (1) TMI 1850 - ITAT HYDERABAD
Late fee u/s 234E in intimation u/s 200A - assessee contended that the provisions to include late fee u/s 234E in the intimation u/s 200A of the Act came into effect only through the Finance Act, 2015 w.e.f. 01/06/2015 and, hence, prior to 01/06/2015 such inclusion of late fee u/s 234E in the intimation u/s 200A is not permissible under the law - HELD THAT:- In the case under consideration, on perusal of record, we find that the TDS returns filed by the assessee for the relevant period i.e., FYs 2012-13 to 2014-15 and 1st Quarter i.e. 01/04/2015 to 31/05/2015 were prior to 01/06/2015. Therefore, respectfully following the said decision of M/S. TERRA INFRA DEVELOPMENT LIMITED [2018 (10) TMI 285 - ITAT HYDERABAD] we set aside the order of CIT(A) and direct the AO to delete the fees levied u/s 234E. With regard to TDS returns filed after 01/06/2015, the fees levied u/s 234E is applicable. Decided partly in favour of assessee.
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2019 (1) TMI 1847 - ITAT MUMBAI
Unexplained cash credit u/s 68 - onus upon the assessee to discharge the burden so cast upon - HELD THAT:- Commissioner of Income Tax (Appeal) found that the assessee discharged the primary onus cast upon it by offering complete explanation of the transaction of the share application money and proved the identity, genuineness and creditworthiness of investing companies, which are the essential conditions provided under section 68 - Assessing Officer made independent enquiry by issuing notices under section 133(6) of the Act to the share applicant and they have complied with the same by submitting necessary details, meaning thereby, the assessee also explained the source of funds. Thus, we are in agreement with the conclusion drawn by the Ld. Commissioner of Income Tax (Appeal) and find no infirmity in the same.
In the present appeal, the necessary documents were duly filed by the investors and responded to the notices issued under section 133(6) of the Act.The copy of the share application form, copy of confirmation of share holders, copy of bank statement, copy of PAN card and annual report of the company with respect to M/s Alka Securities Ltd. are available - Identical documents are available with respect to M/s Alpha Graphics India Ltd. and Alka Broking Ltd.. Similarly, identical documents are available in the paper book, filed by the assessee with respect to remaining investing companies/entities. It is not the case that new document has been filed before the Tribunal for the first time. The material facts available on record clearly established that the requirement of section 68 has been duly fulfilled by the assessee. - Decided against revenue.
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2019 (1) TMI 1846 - ITAT PUNE
Exemption u/s.11 - Denying registration u/s.12AA - HELD THAT:- DR did not dispute that the procedure laid down in the Act has been complied with by the assessee for filing application for registration u/s.12AA of the Act. Hence, in our considered view, in totality of facts and circumstances and judicial principles laid down by the Courts and also for the fact that it is registered with the Commissioner of Charity at Pune, registration u/s.12AA of the Act should be granted.
It is also open to the Revenue Authority at the time of assessment to verify the activities of the Trust to examine whether they will get exemption u/s.11 of the Act or not and do the needful as per law.
We take guidance from the decision of Yogiraj Charity Trust [1976 (3) TMI 5 - SUPREME COURT] that if the predominant objects of a trust is charitable in nature then other objects cannot be judged individually whether they are charitable or not meaning thereby if the totality of objects is charitable the requirements of the law are complied with.
We set aside the order of Ld. CIT and direct to grant registration u/s.12AA - Appeal of the assessee is allowed.
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2019 (1) TMI 1845 - ITAT KOLKATA
LTCG addition - capital asset u/s 2(14) - measurement of distance - whether the assessee’s land sold was a capital asset or not falling within 8 Kms. of the “GHMC” u/s 2(14)(III)(B) of the Act as applicable in the impugned Assessment Year? - taxpayer stand throughout is that its land is not a capital asset since it is situated beyond 8 Kms. distance of any municipality whereas the Revenue’s case is that Mamidipally gram panchayat is adjacent to the GHMC limits - HELD THAT:- There is no evidence on record put forth at the Revenue’s behest specifically quoting any road or surface connectivity of the assessee’s lands to be within 8Kms. distance from any municipality including “GMCH”.
Lower authorities have strongly relied upon the some aviation sector “SEZ” which cannot be taken as the relevant factor is 8 Kms distance not fulfilled u/s 2(14)(III)(B) of the Act. They have further relied upon “Google” assistant in coming to the conclusion that the assessee’s lands are within 6 Kms. of the GHMC limits. Such a method has nowhere been prescribed in the Act.
The legislature; in Finance Act, 2013 w.e.f. 01/04/2013, has made it clear whilst substituting the earlier provision with the distance of the land in question has to be measured as per aerial distance. This is not the Revenue’s case that the said amendment carries any retrospective operation. Meaning thereby that 8 Kms distance condition has to be measured in terms of the road only as held in the case of CIT vs. Vijay Singh Kadan [2015 (9) TMI 755 - DELHI HIGH COURT].
Revenue fails to dispute that neither of the lower authorities has quoted any surface link between the assessee’s land and the nearest municipality namely GHMC so as to treat its lands as capital asset giving rise to long term capital gains on transfer. We direct the Assessing Officer to delete the impugned long term capital gains addition - Decided in favour of assessee.
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2019 (1) TMI 1843 - SC ORDER
Carry forward of unabsorbed depreciation - limitation of six years - HC concluded issue against the Appellant-Revenue and in favour of Respondent-Assessee - HELD THAT:- Special Leave Petitions are dismissed. Signature Not Verified Pending applications, if any, stand disposed of.
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