|
Advanced Search Options
Income Tax - Case Laws
Showing 21 to 40 of 934 Records
-
2019 (3) TMI 2004 - ITAT CHENNAI
Bogus LTCG - unexplained cash credit u/s 68 - denying exemption u/s 10(38) - HELD THAT:- On the issue of claim of exemption u/s.10(38) in respect of long term capital gains, it is noticed that the assessee has not been given any opportunity to prove the genuineness but the assessment has been made based on the evidences collected by the Revenue in the course of the investigation conducted by them on brokers / share broking entities etc. This is not permissible.
This being so, in the interest of natural justice, the issue of the genuineness of the transactions require re-adjudication. Since, the right to exemption must be established by those who seek it, the onus therefore lies on the assessee. In order to claim the exemption from payment of income tax, assessee had to put before the Income Tax authorities proper materials which would enable to come to a conclusion.
AO must keep in mind that the onus of proving the exemption rests on the assessee. If the A O does have any evidence to the contrary, it is to be put to the assessee for his rebuttal. The internal communications of the Revenue are evidences for drawing an opinion on possible wrong claims but they are not the final evidence.
AO shall require the assessee; to establish who, with whom, how and in what circumstances the impugned transactions were carried out etc., to prove that the impugned transactions are actual , genuine etc. The assessee shall comply to the A O’s requirements as per law. On appreciation of all the above aspects, the AO would decide the matter in accordance with law.
-
2019 (3) TMI 2002 - ITAT DELHI
TP Adjustment - marketing and marketing development function carried out for the AE - bench mark-ng is carried out on protective basis - AMP adjustment without applying BLT - HELD THAT:- On identical set of facts the coordinate bench in A. Y. 2013-14 [2017 (11) TMI 1783 - ITAT DELHI] has deleted the addition made on protective basis.
ALP adjustment, in respect of AMP expenses by applying the bright line test (BLT), which is now decided in favour of the assessee. While learned Departmental Representative did not really address on all these aspects, he fairly agreed to our suggestion that the matter is required to be examined afresh by the AO in the light of outcome of the appellate proceedings for the other assessment years as also by way of a speaking order dealing with the specific contentions of the assessee. In the light of this undisputed position within a narrow compass of material facts, we remit the matter to the file of the Assessing Officer for fresh adjudication in the light of our above observations.
Adjustment on account of provision of coordination and other support services - adjustment is the absence of segmental data and satisfactorily allocation of expenses in the segment - HELD THAT:- We have carefully perused the application under rule 29 and the audit certificate filed. In our considered view since now the audited segmental data are available the TPO must examine the same and decide the issue afresh after giving a reasonable opportunity of being heard to the assessee.
We accordingly restored this issue to the files of the TPO with a direction to consider and examine the audited segmental data and decide the issue accordingly. The assessee is directed to furnish relevant data before the TPO. Ground No.4 is treated as allowed for statistical purpose.
-
2019 (3) TMI 2001 - ITAT COCHIN
Reopening of assessment u/s 147 - Assessment u/s 153A - original assessment was not completed u/s. 143(3) - HELD THAT:- Admittedly, in these cases, the original assessments were completed u/s.153A r.w.s. 143(3) - At the time of completion of the assessments, the authorized representative of the assesses appeared and filed copy of bank statements, partners current account as appearing in the books of accounts of the assessee. AO, after being satisfied with the reply given by the assessee completed the assessments u/s. 153A r.w.s. 143(3) - In this situation, it cannot be said that the assessees had failed to disclose all material facts fully and truly required for the assessment. AO, after going through the books of account and other documents filed before him had completed the assessments and chose not to make addition on the issues raised in the reasons recorded for re-opening of the assessments. Therefore, we are of the opinion that there is no negligence on the part of the assessee in furnishing the required details for completing the assessments.
We are of the opinion that the ratio laid down by the Tribunal in the case of Cordial Company [2013 (11) TMI 1801 - ITAT COCHIN] is squarely applicable to the facts of the assessees cases. Taking a consistent view with the Tribunal, we vacate the findings of the CIT(A) and allow the appeals of the assesses herein. Appeals of the assesses are allowed.
-
2019 (3) TMI 1999 - ITAT KOLKATA
TP Adjustment - interest by treating the investment made by the assessee in the share capital of Associated Enterprises - HELD THAT:- It is clear from a reading of para 'e' of the Cabinet Press release that, computation of ALP will arise income arises from an International transaction between AEs. It does not warrant determination or re-computation of a consideration received / given on capital account. Thus, going by the above, the transaction of investment in shares being payment on capital account falls outside the purview.
The aforesaid decision rendered for A.Y. 2010-11 [2017 (11) TMI 1443 - ITAT KOLKATA] has subsequently been followed by the Tribunal in A.Y. 2011-12 & 2012-13 [2017 (11) TMI 1901 - ITAT KOLKATA] to decide the similar issue in favour of the assesese.
Transfer Pricing Adjustment made on account of Guarantee fees - Since the issue involved in the year under consideration as well as all the material facts relevant thereto are similar to that of A.Ys. 2010-11 [2017 (11) TMI 1443 - ITAT KOLKATA] 2011-12 and 2012-13 [2017 (11) TMI 1901 - ITAT KOLKATA] we respectfully follow the orders of the Coordinate Bench of this Tribunal and delete the addition relating to the Transfer Pricing Adjustment made on account of Guarantee fees charged to the Associated Enterprises. Ground No. 3 of the assessee’s appeal is accordingly allowed.
Disallowance u/s 14A - HELD THAT:- Disallowance under section 14A is also covered by the order of the Tribunal [2017 (11) TMI 1901 - ITAT KOLKATA] wherein the disallowance made under section 14A was deleted by the Tribunal on the ground that there was no exempt income actually earned by the assessee during the relevant previous year. To arrive at this conclusion, the Tribunal relied on the decision of Cheminvest Limited [2009 (8) TMI 126 - ITAT DELHI-B] As submitted by the ld. Counsel for the assessee, no exempt income was earned by the assessee even during the year under consideration and keeping in view this undisputed factual position, we delete the disallowance made by the Assessing Officer under section 14A by following the decision of the Tribunal in assessee’s own case Ground No. 4 is accordingly dismissed.
-
2019 (3) TMI 1996 - ORISSA HIGH COURT
Validity of assessment passed by raising an extra demand to be illegal, without jurisdiction and violative of natural justice - notice issued by Assistant Commissioner of Income Tax, Corporate Circle-1(2), Bhubaneswar - HELD THAT:- As established that the jurisdiction is with the Commissioner of Income Tax (OSD) (Exemption). Therefore, the notice under Annexure-13 issued by the Assistant Commissioner of Income Tax, Corporate Circle-1(2), Bhubaneswar, is without jurisdiction. However, we are not expressing our opinion on Annexures-1 and 2, since those are appealable orders.
Accordingly, the notice under Annexure-13 is quashed/set aside. Further, it is open for the competent authority to issue appropriate notice to the petitioner in accordance with law. The writ petition is allowed to the extent indicated above.
-
2019 (3) TMI 1993 - ITAT JAIPUR
Addition on account of Client Code punching error - CIT-A deleted the addition - as per the investigation carried by Directorate I & CI Mumbai and by Directorate of Investigation Ahmedabad it was found that fictitious profits and losses were created by some brokers by misusing the client code modification facility in F&O segment on National Stock Exchange (NSE) - HELD THAT:- The facts for the year consideration are an identical to the fact for A.Y. 2009-10 and the AO has selected only those transactions which would result shifting the profit from the account of the assessee and ignored the other instances of mistakes of client code where the loss is shifted from the account of the assessee. Following the earlier order of this Tribunal and having regard to the facts that the error in the client code modification is only 0.11% for this year in comparison to permissible error of 5% we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
Disallowance u/s 14A - addition restricted by the ld. CIT(A) to @ 0.5% of the average investment - HELD THAT:- It is a clear that the ld. CIT(A) has applied correct rate as applicable for the year under consideration whereas the AO has applied amended rule which was not applicable for the year under consideration. Accordingly, in view of the facts that as per the formula given in Rule 8Dthe disallowance @ 0.5% of the average investment was to be calculated on account of administrative expenditure. Hence, we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
Reopening of assessment u/s 147 - HELD THAT:- The report of the investigation received by the AO in respect of the alleged misuse of client code modification facility for shifting of profit along with the order passed U/s 143(3) r.w.s. 147 for the assessment year 2009-10 constitute a tangible material for forming the belief that income assessable to tax has escaped assessment. We further note that the Assessing Officer had already passed the order U/s 143(3) r.w.s. 147 of the Act for the assessment year 2009-10 and concluded that the assessee has shifted profit in the garb of client code modification facility. Thus, the reassessment order passed for the A.Y. 2009-10 constitutes a tangible material for the AO to form the belief that the income assessable to tax has escaped assessment for the year under consideration and accordingly, the AO issued a notice U/s 148 of the Act on 15.03.2017. Hence, in view of the facts that reopening in the case of the assessee is after the reassessment order passed by the AO for the A.Y. 2009-10 the reopening cannot be held to be based on change of opinion or borrowed satisfaction. Further, the proviso to Section 147 of the Act cannot be invoked for the year under consideration when there is no original assessment U/s 143(3) of the Act. Accordingly, we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
Addition u/s 14A r.w.r. 8D - HELD THAT:- AO noted that the assessee has made huge investment and earned exempt income. It is not a case of isolated instance of investment made by the assessee but the assessee is involved in regular activity of investment and therefore, indirect administrative expenditure for earning the exempt income has to be computed as per Rule 8D of the Income Tax Rules. The assessee is otherwise engaged in the regular activity of trading in the NSE and therefore, the investment made by the assessee necessarily involved its managerial establishment, clerical staff etc. Accordingly, we do not find any merits or substance in the addition of the assessee when the AO has specifically pointed out that the huge expenditure incurred by the assessee in respect of his office staff. Accordingly, the addition sustained by the ld. CIT(A) is upheld.
-
2019 (3) TMI 1991 - CALCUTTA HIGH COURT
Admissibility of appeal in High court - Question of law or question of fact - commission of accommodation entries - HELD THAT:- As in the present case the assessee itself offered profit rate at 0.26%, accepted by the revenue for the A.Y. 2011-12 and which is more than in the case of M/s. Mercantile Pvt. Ltd., which was also related to Badalia Group of cases. In view of the same, we find that the CIT-A was correct in directing the AO to reduce the addition - peal of the revenue is dismissed - no reason to admit the appeal.
-
2019 (3) TMI 1990 - ITAT MUMBAI
Applicability of provisions of section 115 JC - assessee claimed deduction u/s 80IB - As argued housing project undertaken by the assessee has been approved prior to the date of introduction of the provisions of section 115 JC and also completion of the project - HELD THAT:- The housing project undertaken by the assessee was approved by the competent authority and accordingly, assessee claimed deduction under section 80IB of the Act of 100% of the profit from the housing project. We noted that Chapter XII BA i.e. special provisions relating to certain persons other than a company was introduced by the Finance Act 2011 w.e.f. 1.4.2012 and made applicable for and from A.Y. 2012-13 in respect of limited liability partnerships. This provision was made applicable to other categories of persons other than a company with effect from 1.4.2013 by the Finance Act, 2012.
Accordingly, the provisions of section 115JC of the Act was made applicable to profit from housing projects deductible under section.80IB(10) of the Act only in respect of housing projects approved by the competent authority on or after 1.4.2013. Similar case was dealt with by co-ordinate bench of this Tribunal in the case of Neha Home Builders Pvt Ltd. [2018 (4) TMI 860 - ITAT MUMBAI], wherein, it is held that the assessee was entitled to claim of deduction under section,80IB(10) of the Act while computing book profit u/s.115JB of the Act in respect to the profit of the housing project.
As gone through the case law of Hon’ble Supreme Court in the case of Sarkar Builders [2015 (5) TMI 555 - SUPREME COURT] wherein, Hon’ble Supreme court has considered the provisions of section 6 of General clauses Act 1897 and also considered the saving provisions in the repealing statute which is not exhaustive of the rights and which are saved or which survive the repeal of the statute under which such right had accrued.
Hon’ble Supreme Court has considered whatever rights are expressly saved by the saving provisions stand saved but that does not mean rights which are not saved by the saving provisions are extinguished or stand ipso facto terminated by the mere fact that a new statue repealing the old statute is enacted. Even Hon’ble Supreme Court in the case of Vatika Township P Ltd [2014 (9) TMI 576 - SUPREME COURT] has considered the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. One principle of law is known as lex prospicit non respicit law looks forward not backward - a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
The provisions of section 115JC of the Act as brought in the statute by the Finance Act (No.2) w.e.f. 1.4.13 will apply prospectively and to the projects claiming deduction under section 80IB(10) of the Act, which have come or approved on or after that date. Accordingly, this provision cannot be applied to the projects completed or approved retrospectively upto 31.3.2012. Hence, we allow the appeal of the assessee
-
2019 (3) TMI 1989 - DELHI HIGH COURT
Disallowance of Employees Stock Option Plan (‘ESOP’) - HELD THAT:- As pointed out by Assessee that the issue stands covered in favour of the Assessee and against the Revenue by the order of this Court in Commissioner of Income Tax v. Lemon Tree Hotels [2015 (11) TMI 404 - DELHI HIGH COURT] - The Court had affirmed the order of the ITAT in M/S. BIOCON LIMITED [2013 (8) TMI 629 - ITAT BANGALORE] deciding the issue in favour of the Assessee in the said case where the addition made by the AO by way of disallowance of the expenses debited as cost of ESOP in profit and loss account was deleted by the ITAT.
-
2019 (3) TMI 1985 - MADRAS HIGH COURT
Offence punishable u/s 277 - as alleged petitioner did not disclose his money lending and chit business in his returns of income and declared false statement of returns of income filed in his individual capacity and wilfully under reported the income earned by the petitioner - HELD THAT:- The concept of mens rea is integral to criminal jurisprudence and offence cannot be committed intentionally. Section 278 (E) of the Taxation Laws places burden of proving the option of mens rea upon the accused and also provides that such absence need to be proved not only to the basic threshold of “preponderance of possibility” but beyond reasonable doubt. In every prosecution case, the court shall always presume culpable mental state and it is for the accused to prove the contrary beyond reasonable doubt.
In the present case, it is evident from the complaint that the petitioner did not disclose his income to the tune of Rs.35 crores for the assessment years 2009-2010, 2010-2011, 2011-12, 2012-2013, 2013- 2014 and 2014-2015. The petitioner wilfully made false statement of return of income and wilfully under reported the income earned. Therefore, the entire proceedings cannot be quashed on the grounds raised by the petitioner as stated supra. The petitioner has to prove the contrary beyond reasonable doubt before the trial court and the trial court has to enquire the complaint independently on the basis of the evidence as such these petitions are liable to be dismissed.
-
2019 (3) TMI 1983 - ITAT DELHI
Disallowance of depreciation on buildings - scope of rule of consistency - HELD THAT:- Revenue Authorities continuously allowed depreciation on building in earlier Assessment Years 2009-10, 2010-11, 2012-13 & 2014-15 but specifically change its stand in this particular year as well as in Assessment Year 2013-14 without giving proper reasoning towards the same. Thus, following Rule of Consistency, Ground No.1 is allowed.
Depreciation on building pertaining to rental portion of buildings - HELD THAT:- As from the records it can be perused that the assessee purchased the fully constructed building i.e. industrial built up factory and not the land. Therefore, bifurcating the value of land by the Registrar does not specify the value of land and building separately. Therefore, in light of the decision in case of Oswal Agro Mills Ltd. (2010 (12) TMI 947 - DELHI HIGH COURT] wherein it is held that it is difficult to maintain the details of each assets separately in respect of the land and building constructions and the same will frustrate the very purpose of the provisions if it is done so. The Hon'ble High Court further held that it is also essential to point that the Revenue is not put to any loss by adopting such method and allowing depreciation as the same forms part of the block of assets even when that particular asset is not in use in the relevant Assessment - Ground No.2 is allowed.
Disallowance at 10% of Vehicle Maintenance - HELD THAT:- The details of expenses were given to the Assessing Officer by the assessee during the assessment proceedings which was not considered by the Assessing Officer as well as CIT(A). Besides that the CIT(A) has enhanced 5% to 10% which is not as per the specific provision prescribed u/s 37(1) of the Act.
There is no basis for enhancing the expenses and first of all the expenses were properly explained by the assessee during the assessment proceedings. Therefore, we set aside the order of the CIT(A). Ground No.3 is allowed.
-
2019 (3) TMI 1982 - ITAT PUNE
Reopening of assessment u/s 147 - bogus purchases - information received from sales tax department about hawala transactions of purchases made by the assessee - HELD THAT:- AO does not treats the purchases as non-genuine / bogus but makes addition by treating the purchases as “URD purchases”. The addition is made only of the Gross profit on such alleged “URD purchases”.
We find in the case of Jet Airways (2010 (4) TMI 431 - HIGH COURT OF BOMBAY] has held that if after issuing notice u/s 148 of the Act, AO holds that the income which he has initially formed a reason to believe had escaped assessment has not escaped assessment, then it is not open to him to independently assess some other income.
In the present case when seen in the light of the aforesaid decision of Hon’ble Bombay High Court (supra) the reasons for reopening was on account of bogus/non genuine purchases but no addition has been made on that count but addition has been made for the reason that the purchases are “URD purchases”. As during the course of reassessment proceedings assessee had furnished the details called for to prove his contention that the purchases are genuine except for the confirmation of the parties from whom the purchases were made. Before me, no fault has been pointed out in those details submitted by the assessee - Decided in favour of assessee.
-
2019 (3) TMI 1979 - ITAT DELHI
Assessment u/s 153C - Validity of satisfaction note on the basis of which the assessing officer initiated the proceedings u/s 153C - HELD THAT:- As seen that the impugned satisfaction note provided to the assessee vide AO’s letter unsigned, with no date indicating the date on which satisfaction was drawn, and with no mention of the assessment year for which satisfaction was drawn, while the satisfaction found in the assessment folder is on the note sheet side (X2) - with no page marking on the satisfaction prior to 06.01.2016 when the assessment folders were sent back to the AO by me, but subsequently found marked in the case of the appellant and that of Sh. Kartik Patel and Sh. Abhishek Kartik Patel and in the case of Smt. Meenakshi Patel and M/s Kartik Chandulal Patel HUF (in fact the satisfaction in the file of Sh. Kartik Pate! is that of Smt. Meenakshi Patel) - and the correspondence sheets are marked up to pages 187, 411, 192, 194 and 187 respectively which do not include tne satisfaction note on the correspondence side.
Besides, on the satisfaction note, both X1 & X2, the name of the searched company M/s Sheela Foam Pvt Ltd is noted on top, meaning thereby that the satisfaction was recorded in the case of SFPL on 28.08.2013 when notice u/s 153A was issued to SFPL, but there is no satisfaction recorded in the case of the appellants (Kartik Patel Group hamily members). In this view of the matter, and in terms of the AO’s reply that “the undersigned is unable to explain the unsigned/undated copies of satisfaction notes as claimed by the assessee”, the satisfaction enclosed with the AO’s letter F.No.DCIT/CC- 11/2013-14/1634 dt. 06.01.2014 sent to the assessee cannot be considered as valid satisfaction of the AO. We further note that since the AO has mentioned in his reply dt. 14.01.2016 that “The assessment records as available in this office were sent as desired by your goodself, it is necessary to mention that the assessment folders of all the five cases of the group was sent back to the AO on 06.01.2016 and the AO’s reply is dt. 14.01.2016.
We do not find any reason to interfere in the order of the Ld. CIT(A), wherein it has been held that the satisfaction recorded by the AO and the issuance of notices u/s. 153C of the Act held to be invalid and therefore, the reassessment orders in this case cannot be sustained and appeal of the assessee was rightly partly allowed on the legal issue itself, hence, we uphold the action of the Ld. CIT(A) on the legal issue and dismiss the appeal of the Revenue.
-
2019 (3) TMI 1978 - ITAT COCHIN
Reference made to the DVO u/s 142A - Addition u/s 69B - HELD THAT:- Admittedly, section 142A of the I.T.Act is a procedural provision and applies to pending assessments. In the instant case, the reference u/s 142A of the I.T.Act to the DVO was made on 06.12.2004 and the assessment was completed only vide order dated 30.03.2005. The assessment so completed vide order dated 30.03.2005 has not become final and conclusive because the appeal was filed by the Revenue and the same is being considered by the Tribunal. Therefore,since the assessment has not attained finality, the amended provisions of section 142A of the I.T.Act (with effect from 01.10.2014) will have application to the facts of the instant case (since the above said provision is a procedural provision and not a substantive provision).
The amended provisions, viz., section 142A(2) states that the Assessing Officer may make a reference to the DVO whether or not he is satisfied with the correctness and completeness of the accounts of the assessee. Further the amended provision requires the DVO to give opportunity of being heard to the assessee and send a copy of the report to the assessee. The amended provision of section 142A of the I.T.Act (w.e.f. 01.10.2014), going by the dictum laid down by the Hon’ble Apex Court in the case of Sunita Mansingha [2017 (4) TMI 303 - SUPREME COURT] has application to the facts of the instant case. Having held that the amended provision of section 142A of the I.T.Act has application to the facts of the case, we have to necessarily hold the rejection of books of account is not a pre-condition for reference to the DVO u/s 142A of the I.T.Act.
Also we notice that in the instant case various discrepancies in the valuation report pointed out by the assessee was never addressed to by the DVO nor by the Assessing Officer. On the contrary, the Assessing Officer did not give proper opportunity of hearing to the assessee on account of the assessment becoming time barred and this is clear from para 5 of the assessment order, wherein it is mentioned “since the case is getting time barred by limitation on 30.01.2005, the contentions raised by the assessee could not be considered at this stage”.
It was clear that there was no proper examination either by the DVO nor by the Assessing Officer with regard to the objections raised by the assessee in regard to the valuation report. A.O. had also stated that DVO’s report is binding on him. This statement of the A.O. is incorrect. The report of the DVO is only advisory in nature and not binding on A.O. Therefore, we deem it appropriate to restore the issue to the Assessing Officer to consider the objections of the assessee, so that the discrepancies / objections raised by the assessee to the valuation report could be addressed and a clear finding can be given on the discrepancies / objections of the assessee Therefore, the finding of the CIT(A) on this score is set aside.Revenue’s appeal is allowed for statistical purposes.
AY 2002-03 - When the new Sec.142A was inserted by the Finance (No.2) Act, 2014, the proviso to Sec.142A(3) did not exist as it no longer served any purpose. The legislature was conscious of the fact that the substitution of Sec.142A by the Finance (No.2) Act, 2014 was made only for the purpose of overruling the legal position as interpreted by various High Courts and Supreme Court in the case of Sargam Cinemas [2009 (10) TMI 569 - SC ORDER] The legislature did not make the law retrospective in operation nor were pending proceedings saved as was done when Sec.142A was inserted by the Finance (No.2) Act, 2004 w.r.e.f. from 15.11.1972. It cannot also be said that Sec.142A as inserted by the Finance Act, 2014 has retrospective effect. Therefore, the reference to DVO in the present case is invalid because rejection of books of accounts is a pre-condition for making a reference to DVO and there was admittedly no such rejection of books of accounts.We also find that the value as declared by the Assessee in its books of accounts was much higher than the value as was estimated by the Registered Valuer in the report filed by the Assessee and therefore there was no occasion to draw any inference that investment in construction as recorded in the books of accounts was less calling for any addition u/s.69B of the Act.
-
2019 (3) TMI 1977 - BOMBAY HIGH COURT
Validity of assessment u/s 153A - whether ITAT is correct in law in holding that the scope of section 153A is limited to assessing only search related income, thereby denying Revenue the opportunity of taxing other escaped income that comes to the notice of the AO? - HELD THAT:- The issues are squarely covered by Judgment of this Court in the case of Commissioner of IncomeTax v. Deepak Kumar Agarwal [2017 (9) TMI 850 - BOMBAY HIGH COURT] in which it is held that assessment under section 153A of the Income Tax Act, 1961 can be made only on the basis of incriminating material found during a search. No question of law arises
-
2019 (3) TMI 1975 - ITAT PUNE
Ex-parte order - Miscellaneous Application has been filed by the applicant against the order of Tribunal in dismissing the appeal in limine as the applicant had not signed grounds of appeal and had also not appeared on the date of hearing - HELD THAT:- The applicant states that it had not received any of the notices of hearing. Further, it had made good the deficiencies in the Memo of Appeal and hence, has requested that the ex-parte order be recalled.
We recall the ex-parte order passed in the case of applicant and direct that the same may be fixed for hearing in regular course. Notice of hearing be issued to the parties and in case any other defect is remaining to be rectified, then the same also be made good by the applicant. In the result, Miscellaneous Application of applicant is allowed.
-
2019 (3) TMI 1973 - ITAT CHENNAI
Cessation of liability u/s 41(1) - liability against the total addition made by the AO towards outstanding land advance treated as income u/s 41(1) - HELD THAT:- In this case, the Assessing Officer had considered the liability as ceased/non-existence, because of the fact that the liability is being shown as outstanding and the assessee has not provided confirmation from the creditors or has failed to provide necessary details like PAN/Address of the creditors or there is no possibility of the creditors claiming their debts in future and applied section 41(1) of the Act by adding the liability to the taxable income of the debtor.
It is an agreed position that in the assessee's balance sheet, the impugned liabilities have been shown, which are payable to the sundry creditors. Such liabilities, shown in the balance sheet, indicate the acknowledgement of the debts payable by the assessee. Merely because such liability is outstanding for the last two to three years, it cannot be presumed that the said liabilities have ceased to exist. It is also conceded position that there is no bilateral act of the assessee and the creditors, which indicates that the said liabilities have ceased to exist. In absence of any bilateral act, the said liabilities could not have been treated to have ceased.
CIT(A) has rightly held that the AO was not correct in coming to the conclusion that the entire land advances of ₹.2,84,45,000/- should be treated as income for the assessment year 2014-15 under section 41(1) of the Act by rejecting the contention of the assessee that the portion of the outstanding liability amounting to ₹.1,66,90,000/- had been admitted in the Return of Income filed for the assessment year 2014-15. Thus, in view of the above facts and circumstances of the case, we are of the considered opinion that the CIT(A) has rightly directed the Assessing Officer to delete the balance liability amounting to ₹.1,17,55,000/- which the assessee claims not having been written off yet in its books of account. Thus, the ground raised by the Revenue stands dismissed.
-
2019 (3) TMI 1972 - BOMBAY HIGH COURT
TP Adjustment - comparable selection - inclusion or exclusion of certain comparables by the Tribunal while carrying out FAR in case of the Assessee - Tribunal discarded two entities namely Motilal Oswal Investment Advisory Pvt. Ltd. and Brescon Corporate Advisors Pvt. Ltd. on the ground that these companies were merchant bankers or investment bankers and cannot be compared with the Assessee who was investment subadvisor - third instance of comparable is of ICRA Management Consulting Services Ltd. Tribunal accepted the Assessee's contention that ICRA Management provided a safe comparable. The Revenue disputes these three findings of the Tribunal.
HELD THAT:- Through Judgment in the case of Commissioner of Income Tax-10, Mumbai Vs. Carlyle India Advisors (P) Ltd. [2013 (4) TMI 486 - BOMBAY HIGH COURT] this Court has confirmed the Tribunal's view that the case of investment advisor or subadvisor cannot be compared with a merchant banker or investment banker. The first two instances discarded by the Tribunal, therefore, do not call for any interference.
Insofar as the comparison with ICRA Investment is concerned, here also, the issue is covered against the Revenue in the decision of The Commissioner of Income Tax3 Vs. Temasek Holdings Advisors India Pvt. Ltd. Income [2016 (11) TMI 1510 - BOMBAY HIGH COURT]. - Decided against revenue.
-
2019 (3) TMI 1969 - ITAT DELHI
TDS u/s 195 - non-deduction of TDS on the payment made to foreign entity in USA and Italy (SPA) holding the same as commission - whether such payments made was in the nature of commission or fee for technical services and the assessee only named the same as commission - HELD THAT:- DR though relied on the orders of the Assessing Officer, but did not object to the contention of the learned AR that the issue involved in both these appeals are squarely covered by the decision of Co-ordinate Bench in assessee's own case for A.Y. 2010-11 [2019 (1) TMI 537 - ITAT DELHI] whereby in the identical facts of the case, the payments made to the same agents have been treated as commission and not as fee for technical services - Decided against revenue.
-
2019 (3) TMI 1968 - ITAT KOLKATA
Non-issuance of section 143(2) by the AO having territorial jurisdiction - Transfer of assessee jurisdiction - HELD THAT:- CIT(A) hold that the Assessing Officer has assumed jurisdiction based on PAN basis. He is fair enough in not disputing the clinching fact that the assessee’s jurisdiction already stood transferred to latter AO who has framed assessment for preceding assessment year 2014-15 in its case on 30.09.2016. Hon’ble jurisdictional high court decision in Smt. Smriti Media [2011 (4) TMI 1158 - CALCUTTA HIGH COURT] holds that such an assessment without having territorial jurisdiction is not sustainable in the eyes of law. We draw support therefrom to hold that the impugned assessment framed is not valid. The same is accordingly quashed. Appeal of assessee allowed.
........
|
