|
Advanced Search Options
Income Tax - Case Laws
Showing 161 to 180 of 506 Records
-
2021 (11) TMI 815 - SC ORDER
Capital gain on distribution of assets - Conversion of the partnership firm into a private limited company - Violation of the conditions stipulated u/s 47(xiii) - transfer by way of distribution of assets - partners of the erstwhile firm derived benefit other than allotment of shares by way of loan credits in their favour on conversion of the partnership firm into a private limited company - HC held unless and until the first condition of transfer by way of distribution of assets is satisfied, Section 45(4) will not be attracted. Therefore, in the facts and circumstances of the case, we find that there is no transfer by way of distribution of asset - HELD THAT:- As the respondent has already availed the benefit under the scheme i.e. Vivad se vishwas.In view of the same, no further order is required.
Accordingly, the special leave petition is disposed of.
-
2021 (11) TMI 814 - SC ORDER
Slump sale - Section 2(42C) - valuation entire unit - valuer assigned separate valuation to different parts of the unit - Effective date of sale of this unit - CRM division stood sold from the effective date - Date of transfer - Date of agreement - Disallowance of expenditure made in terms of section 14A - HELD THAT:- We see no reason to interfere. The Special Leave Petition is dismissed.
-
2021 (11) TMI 813 - BOMBAY HIGH COURT
Reopening of assessment u/s 147 - Validity of reasons to believe - HELD THAT:- There is no material which has come in the hands of respondent after the assessment order was passed on 12/3/2016 which can be considered as material fact and the same was not truly and fairly disclosed.
By letter dated 9/11/2015 petitioner had received the letter from office of the Assistant Commissioner, Office of Income Tax calling upon to furnish the documents and details of about 27 transactions/flat sales. Transaction amount has also been mentioned and the total of these transactions which is the amount mentioned in the reasons for reopening. In reply petitioner vide its letter dated 17/11/2015 provided all details and documents to the AO. Subsequently, the assessment order dated 29/2/2016 was passed. Date given as 12/3/2016 in the reasons, Shri Jain says appears to be erroneous.
We are satisfied that this is nothing but change of opinion and using the words “I have reason to believe that income chargeable to tax…. By reason of the failure on the part of the assessee to disclose fully and truly all material facts………….” in the reason for reopening is clearly an attempt to take the case out of restrictions imposed by the proviso of Section 147 of the Act - Decided in favour of assessee.
-
2021 (11) TMI 812 - BOMBAY HIGH COURT
Reopening of assessment u/s 147 - Assessment sought to be reopened after a period of 4 years - HELD THAT:- The criterion for reopening of assessment after a period of 4 years are no longer res-integra in view of the Judgment of Division Bench of this Court in the case of Ananta Landmark (P.) Ltd. [2021 (10) TMI 71 - BOMBAY HIGH COURT] wherein this Court held that where assessment was not sought to be reopened on reasonable belief that income had escaped assessment on account of failure of assessee to disclose truly and fully all material facts that were necessary for computation of income but was a case wherein assessment was sought to be reopened on account of change of opinion of Assessing Officer about manner of computation of deduction under section 57, reopening was not justified.
When the primary facts necessary for assessment are fully and truly disclosed, the Assessing Officer is not entitled to a change of opinion for commencing proceedings for reassessment. It is also held that when on consideration of the material on record, one view is conclusively taken by the Assessing Officer, it would not be open for the Assessing Officer to reopen assessment based on the very same material and to take another view.
In the facts of the present case, in view of reply filed by Petitioner (Exh.B), it is clear that the Assessing Officer was aware of the issue of AIR and ITS data. Once the Assessing Officer had applied his mind in regular assessment proceeding of Petitioner having sold 29 flats, it is not open for Assessing Officer to reopen the assessment in absence of material to show escapement of income. See Aroni Commercial Limited [2014 (2) TMI 659 - BOMBAY HIGH COURT] and in Marico Ltd [2019 (8) TMI 1337 - BOMBAY HIGH COURT] AO is reopening the assessment merely on the basis of change of opinion which is not permissible and hence could not have issued a notice of re-opening of assessment to Petitioner. - Decided in favour of assessee.
-
2021 (11) TMI 811 - DELHI HIGH COURT
Validity of reopening of assessment u/s 147 - A argued admittedly, notice(s) were issued to entities which were not in existence at the relevant time, as they had merged with the petitioner-company i.e., GE India Industrial Pvt. Ltd. - HELD THAT:- As the impugned notice(s) issued under Section 148 of the Act cannot be sustained, as they were issued to entities [i.e., GE India Technology Centre Pvt. Ltd. and GE India Exports Pvt. Ltd.which were not in existence at the relevant time, as they had merged with the petitioner-company i.e., GE India Industrial Pvt. Ltd.
Therefore, the impugned notice(s) dated 30.06.2021 are set aside.
The respondents/revenue will have liberty to take next steps in the matter, albeit as per law. In case any such steps are taken, the petitioner-company will have the liberty to assail the same, in accordance with law.
-
2021 (11) TMI 810 - MADRAS HIGH COURT
Alteration of charge - main charges for the offence under Section 276(C)(1), after examination of P.W.7, in connection with the very same Assessment Year for non payment of Tax, charge under Section 276(C)(2) Income Tax Act was now sought to be added by way of alteration of charge - HELD THAT:- It is not disputed that sanction under Section 279 (1) of Income Tax Act is already been granted and sanctioned for the offence under Section 276(C)(1) and other offences. Since the expression "unless the sanction had been already obtained for a prosecution on the same facts as those on which, the altered or added charge is found", new or fresh sanction is not required, as contemplated under Section 216(5) of Cr.P.C., is present.
As stated supra, the Assessment Year is one and the same. Initial charge is for evasion of tax. Now, by way of alteration of charge, it is included to add evasion of payment of tax and hence, we do not find any error in the order passed by the Special Sessions Judge, in allowing the application.
Stage of the case - According to the petitioner, the matter is posted for argument, at this stage, whether, this type of nature of the petition can be entered - HELD THAT:- The Hon'ble Supreme Court in Dr.Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors. [2020 (1) TMI 1412 - SUPREME COURT] has held that the stage of the proceedings is irrelevant for alteration of the charge and hence, I find no illegality or irregularity in the impugned order passed by the learned Sessions Judge.
-
2021 (11) TMI 809 - ITAT JAIPUR
Revision u/s 263 by CIT - Period of limitation - Allegation of lack of adequate opportunity being provided by the ld PCIT - HELD THAT:- This is clearly a case of lack of adequate opportunity being provided by the ld PCIT. We find that the show-cause notice has been issued on 26.03.2021 at the fag end of the limitation period, which was expiring on 31.03.2021, wherein the assessee has been provided effectively one working day to respond by 29.03.2021, and the order was thereafter pronounced on 31.03.2021. We understand that being a limitation period, the ld PCIT could not have granted more time but the question is what stopped the ld PCIT to atleast initiate the proceedings earlier and why the proceedings were initiated at the fag end of the limitation period -
We believe that the assessee deserve a reasonable and sufficient opportunity to put forth his submissions and supporting documentation in response to the show-cause notice raised by the ld PCIT. We therefore deem it fit and appropriate that the matter be set-aside to the file of the ld PCIT to decide the matter a fresh as per law after providing reasonable opportunity to the assessee.
Whether assessment order has been made subject matter of Vivad Se Vishwas Scheme, the ld. Pr.CIT cannot exercise jurisdiction u/s 263 ? - PCIT is also directed to examine the contentions so raised on behalf of the assessee in terms of exercise of jurisdiction u/s 263 in context of declaration of the assessee having been accepted under the direct taxes Vivad Se Vishwas Scheme Act, 2020 prior to the issuance of the show-cause notice u/s 263 - since the ld PCIT himself is the appropriate authority who has issued Form 3 dated 23.02.2021 in the instant case and the fact that the said contentions have been advanced for the first time before us, it is relevant to afford an equal opportunity to the ld PCIT to examine such contentions raised on behalf of the assessee challenging his exercise of jurisdiction u/s 263 of the Act. Therefore, the contentions so advanced by both the parties are left open to be examined by the ld PCIT as per law and have not been adjudicated upon by us.
-
2021 (11) TMI 808 - ITAT CHANDIGARH
Revision u/s 263 by CIT-A - essential prerequisite for assuming revisionary jurisdiction u/s 263 - AO having not inquired into the difference in the amount of sales, trade receivables and trade payments as reflected in the financial statements of the assessee and that submitted in the details to the AO, causing prejudice to the Revenue on account of income relating to sales to that extent having escaped assessment or there being unexplained investments of the assessee - HELD THAT:- It is a settled proposition of law that for assuming revisionary jurisdiction u/s 263 of the Act there has to be a clear finding of error by the PCIT/CIT in the order so sought to be revised. And this finding has to be arrived at after conducting necessary inquiry if required. In cases of inadequate inquiry there has to be a finding that the inquiry made was erroneous. And this can happen only when the PCIT/CIT himself conducts an inquiry and verification and establishes therefrom the error made by the AO, making his order unsustainable in law. The finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the AO to conduct further inquiries without a finding that the order is erroneous.
Where the assessee we find had duly furnished an explanation of the issue not allegedly found to have been examined by the AO and the Ld.Pr.CIT having not even made an effort of examining the explanation simply restoring it to the AO to do so, there is we hold no finding of error by the Ld.PCIT in the order of the AO.
We hold that the orders passed by the ld. Pr. CIT being beyond the scope of section 263 of the Act are not valid. Accordingly we set aside the revision orders passed by the Ld.PCIT for the two years under consideration. - Decided in favour of assessee.
-
2021 (11) TMI 807 - ITAT KOLKATA
Addition u/s. 68 - unexplained cash credit - addition relying on the statement of Shri Raj Kumar Kothari who had retracted the statement within ten (10) days alleging threat and coercion on the part of the Investigation Wing - DR submitted that based on information from the Investigation Wing that the assessee had taken unsecured loan from ten (10) shell companies controlled and operated by Shri Raj Kumar Kothari who have accepted before the Investigation Wing that he through his legal entities (Private Limited companies) is indulging in providing bogus share capital and unsecured loan in lieu of commission - CIT-A deleted the addition - HELD THAT:- All the ten (10) lender companies are corporate entities which are incorporated by the ROC and thus the existence and status of them can be taken note by the A.O. from the master data available in the public domain/website of ROC; And it was brought to our notice that these companies are still 'active' companies which are discernable from ROC website.
All the lender companies have their respective PAN identity and the jurisdiction under whom they are assessed are available in the ITR filed by them directly to the A.O. pursuant to the section 133(6) notice issued by the A.O. and transactions have been made through account payee cheques thus A.O. of the assessee who borrows or is in receipt of credit/loan (like assessee in this case) cannot brand the lender company as lacking in creditworthiness, unless the A.O. undertakes the exercise of enquiring from the A.O. of the lender companies and in case if the A.O. of the lender companies have accepted the transactions shown by them with the assessee company, then the A.O. of the assessee company cannot impute un-creditworthiness of the lender company .
The lender companies have sufficient creditworthiness to give loan to the assessee company and cannot be termed as shell companies by simply basing his (A.O) conclusion on the strength of selected questions and answers given by Shri Raj Kumar Kothari and that too recorded on third party proceedings and which were admittedly recorded behind the back of the assessee.
Shri Raj Kumar Kothari has retracted the said statement recorded on 02.03.2016 within ten (10) days and has alleged threat and coercion on the part of officers who elicited the statement as they wished, so the statement/truth of the contents of the statement cannot be relied upon by the A.O. and doing so is bad in law; and therefore according to us, it could not have been the basis to draw adverse inference against the assessee company in respect of loan taken by it.
A.O. had summoned Shri Raj Kumar Kothari and his statement has been recorded by him from which he could not elicit any incriminating material/statement against the assessee/loan transaction or can term the assessee as a beneficiary. And neither the AO has carried out any enquiry regarding creditworthiness of the lenders from their respective AO's, without which AO of the assessee could not have drawn adverse view of un-worthiness of credit in respect of lenders as held by the Hon'ble Calcutta High Court in the case of M/s. Dataware Private Limited [2011 (9) TMI 175 - CALCUTTA HIGH COURT] so the A.O. of the assessee erred in branding the lender companies as lacking in creditworthiness.
AO could not successfully elicit incriminating evidence against the assessee and on the other hand, Shri Raj Kumar Kothari has confirmed that loan transaction with the assessee as genuine and the AO after having recorded directly the statement of Shri Raj Kumar Kothari should not have relied on the earlier statement recorded by the Investigation Wing in third party proceedings which has been retracted - AO has not found any infirmity with the documents filed by the assessee to prove the loan transactions as discussed supra. So, other than the third party statement, which did not incriminate the assessee, and which was retracted, and while giving statement to AO Shri Kothari having confirmed the loan transaction with assessee and since Shri Kothari has corroborated the transaction, the retracted statement should not have been used as the basis to draw adverse inference against the assessee. Therefore, no addition was warranted. - Decided against revenue.
-
2021 (11) TMI 806 - ITAT DELHI
Taxability of supply of software as royalty - business connection/PE in India - AO held that the assessee had an Agency PE in India - AO directed attribution of profits of 15% from the sale of equipment - AO held that the amount received by the assessee on account of software licensing as loyalty u/s 9(1)(vi) & (vii) of the Income Tax Act, 1961 and under the Article 12 of the treaty between India and USA - HELD THAT:- As decided in own case [2017 (4) TMI 1504 - DELHI HIGH COURT] consideration received by the Assessee for supply of product along with license of software to End user is not royalty under Article 12 of the Tax Treaty. Even where the software is separately licensed without supply of hardware to the end users (i.e. eight out of 63 customers), we are of the view that the terms of license agreement is similar to the facts of Infrasoft Ltd' [2013 (11) TMI 1382 - DELHI HIGH COURT]. Accordingly, we- hold' that there was no transfer of any right in respect of copyright by the Assessee and it was a case of mere transfer of a copyrighted article. The payment is for a copyrighted article and represents the purchase price of an article. Hence, the payment for the same is not in the nature of royalty under Article 12 of the Tax Treaty. The receipts would constitute business receipts in the hands of the Assessee and is to be assessed as business income subject to assessee having business connection/PE in India as per adjudication on Ground - Decided in favour of assessee.
-
2021 (11) TMI 805 - ITAT SURAT
Validity of reopening of assessment - allegation of non issue of notice under Section 143 (2) - addition of Bogus purchases - HELD THAT:- In the absence of fulfillment of mandatory requirement of issuance of notice under section 143(2) of the Act, the assumption of jurisdiction by issuance of notice of reopening itself would not be sustainable in law. Besides, section 292BB of the Act would apply with regard to failure of 'service' of notice’ and not with regard to issue of notice u/s 143(2) prior to finalization of assessment order, cannot be condoned by referring to section 292BB of the Act.
Merely because assessee participated in proceedings pursuant to notice issued under section 148, it does not obviate mandatory requirement of issue of notice under section 143(2) of the Act.This is an undisputed position of fact, as far as the present case is concerned, that assessing officer failed to issue a notice to the assessee under section 143(2) of the Act when the Assessee made a request before the assessing officer vide letters dated 23.12.2014 and dated 21.02.2015 that the original return filed should be treated as return filed in response to notice under section 148 of the Act.
AO has unequivocally admitted in his Remand Report that no notice was issued (not available on record) u/s 143(2) of the Act. The assessee has also filed an affidavit dated 31.01.2017 (duly notarized) stating that he never received notice under section 143(2) of the Act. These averments remained uncontroverted. Thus, we do not find any infirmity in the order of ld CIT(A). That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
-
2021 (11) TMI 804 - ITAT MUMBAI
Income taxable in India - PE in India - whether Zee Telefilms Limited (ZTL) does not constitute a Permanent Establishment (PE) of the assessee in India? - CIT(A) held that, in the absence of a permanent establishment (PE), income of the assessee is not taxable as per article 7 of the DTAA? - HELD THAT:- As decided in own case [2021 (2) TMI 95 - ITAT MUMBAI] even if there is held to be a dependent agency permanent establishment on the facts of this case, as at best the case of the Assessing Officer is, it is wholly tax neutral inasmuch as the Indian agents have been paid arm's length remuneration, and nothing further can, therefore, be taxed in the hands of the assessee.
It has not been the case of the revenue authorities at any stage that the remuneration paid to the Indian agent is not an arm's length remuneration for the services rendered by the agents concerned. There is no material whatsoever before us to show, or even indicate, that the remuneration paid to the agents is not arm's length remuneration. Under these circumstances, we see no reasons to remit the matter to the file of the Assessing Officer, for fresh round of ALP ascertainment proceedings, as prayed by the learned Departmental Representative. The plea of the assessee, as raised in the cross objections, therefore, merits acceptance. Whether there is a DAPE or not, there are no additional profits to be brought to tax as a result of the existence of the DAPE, and, therefore, the question about existence of a DAPE on the facts of this case is wholly academic.
Once we hold, as we have held above, that in the light of the present legal position, existence of dependent agency permanent establishment in wholly tax neutral, unless it is shown that the agent has not been paid an arm's length remuneration, and when it is not the case of the Assessing Officer, as we have noted earlier, that the agents have not been paid an arm's length remuneration, the question regarding existence of dependent agency permanent establishment, i.e. under article 5(4), is a wholly academic question. - Decided in favour of assesse.
-
2021 (11) TMI 803 - ITAT MUMBAI
Deemed dividend u/s 2(22)(e) - transaction of money received from the company - HELD THAT:- We notice from the records submitted before us indicate that the assessee was having regular transactions with the company and paid advances to the company in the earlier assessment year and this year assessee has entered into transactions like sale of plot to the above said company and also intend to give office space on rent, even though the MOU submitted by the assessee are unsigned, the transactions declared by the assessee in the previous assessment year clearly indicates that assessee has already taken ₹ 12,25,000 as rental advance in the previous year. Since it is a continuous transaction and we notice that still assessee to receive ₹ 12,64,000 from the company against the advance paid during the previous assessment year, in our opinion, we do not see any reason to treat the current year transaction as deemed dividend.
In the present case, we notice that irrespective of the reserves and surplus balance outstanding in the company, the assessee was dealing with the company by paying advances/deposit to the company. Further we notice that the assessing officer has proceeded to treat the difference between the closing balance and the opening balance as the deemed dividend. In order to make the addition under the head deemed dividend, the Assessing Officer should investigate each transaction of money received from the company and the make the addition accordingly. Therefore, we do not see any reason to sustain addition made by the Assessing Officer. Accordingly, we direct the Assessing Officer to delete the addition made under the head deemed dividend under section 2(22)(e) - Decided in favour of assessee.
Correct head of income - Gain on sale of shares - capital gain or business income - assessee declares income from sale of shares as capital gains and also deals in derivative transactions while AO treated the transactions carried on by the assessee as business transaction- HELD THAT:- Assessee had shares held for more than 12 months and we are in agreement with the assessee that assessee can have choice of treating the income under the head capital gains as per the circular No. 6 above 2016 dated 29 February 2016 and also in our opinion that statements submitted by the assessee needs verification, therefore we find it appropriate to remit this issue back to the file of assessing officer to verify the claim of the assessee and accordingly treat the income declared by the assessee under the head capital gains to those portfolios which was held by the assessee as investment.
Short-term capital gain and derivative transactions, as held in the case of Ghopal Purohit [2010 (1) TMI 7 - BOMBAY HIGH COURT]the assessee is allowed to maintain its business transaction/portfolio management under 2 categories one held as stock in trade and another held for investment - we direct the assessing officer to complete the assessment based on the ratio of above decision. Accordingly ground No.2, 3 and 4 are allowed for statistical purpose.
Exemption as profit on sale of agricultural land - new claim under section 54B - HELD THAT:- We notice that assessee has claimed deduction under section 54B first time before Ld CIT(A) and Ld CIT(A) rejected the claim of the assessee without going into the documents submitted by the assessee and he rejected the claim based on the information available on record. We’re in agreement with the assessee that assessee can claim the deduction/exemption anytime during the appellate proceedings. Since assessee is making a fresh claim and it is found that assessee is legally eligible to claim the same. In order to verify the claim of the assessee, we are remitting this issue back to the file of AO and we are directing the assessing officer to verify the relevant documents and submissions made by the assessee and in case it is found that assessee is eligible to claim deduction then it may be allowed as per law. With the above direction, we are allowing the ground raised by the assessee for statistical purpose.
-
2021 (11) TMI 776 - BOMBAY HIGH COURT
Reopening of assessment u/s 147 - Allowability of expenses incurred on advertisement and marketing by the Petitioner - change of opinion - HELD THAT:- As in view of notice dated 14/8/2014 and order sheet entry dated 4/10/2014, it is clear that the Assessing Officer in the original assessment was aware of the issue of expenses incurred on advertisement and marketing by the Petitioner. Once the Assessing Officer had applied his mind in the regular assessment proceedings of Petitioner having incurred advertisement and marketing expenditure, it is not open for the Assessing Officer to reopen the assessment. This Court in Aroni Commercial Limited [2014 (2) TMI 659 - BOMBAY HIGH COURT] and in Marico Limited [2019 (8) TMI 1337 - BOMBAY HIGH COURT] had taken a similar view. The pronouncements of the coordinate Bench of this Court are binding on us.
Reopening beyond period of four years - The criteria’s for reopening of assessment after a period of 4 years are no longer Res-Integra in view of the judgment of Division Bench of this Court in the case of Ananta Landmark (P.) Ltd. [2021 (10) TMI 71 - BOMBAY HIGH COURT] wherein this Court held that where assessment was not sought to be reopened on reasonable belief that income had escaped assessment on account of failure of assessee to disclose truly and fully all material facts that were necessary for computation of income but was a case wherein assessment was sought to be reopened on account of change of opinion of Assessing Officer about manner of computation of deduction under Section 57, reopening was not justified. It is also held that when the primary facts necessary for assessment are fully and truly disclosed, the Assessing Officer is not entitled to a change of opinion for commencing proceedings for reassessment. It is also held that when on consideration of the material on record, one view is conclusively taken by the Assessing Officer, it would not be open for the Assessing Officer to reopen assessment based on the very same material and to take another view.
We are therefore satisfied that the Assessing Officer could not have reopened the assessment merely on the basis of change of opinion and could not have issued a notice of reopening of assessment to Petitioner. - Decided in favour of assessee.
-
2021 (11) TMI 775 - ITAT CHENNAI
Revision u/s 263 - Deduction u/s 54F disallowed - Case has been subsequently selected for scrutiny and notice u/s. 143(2) was issued calling for various details - assessee preferred an appeal before the CIT(A), but could not appear therefore, the CIT(A) disposed off appeal filed by the assessee ex-parte - assessee submitted that the learned CIT(A) has erred in dismissing appeal filed by the assessee without providing reasonable opportunity of hearing in violation of principles of natural justice - HELD THAT:- No doubt, appellate authority has no option, but to dispose off appeal filed by the assessee, in case appellant does not appear before the appellate authority, despite various opportunity of hearing was provided, but such appeal should be disposed off on merits on the basis of material available on record. But, before disposal of appeal, reasonable opportunity of hearing must be given to explain his case. In this case, the learned A.R submitted that the learned CIT(A) has not disposed off the appeal on merits by passing reasoned order. Therefore, considering facts and circumstances of this case, we are of the considered view that issue needs to go back to the file of learned CIT(A) to give one more opportunity of hearing to the assessee to file necessary evidences and explain his case. Appeal filed by the assessee is treated as allowed for statistical purposes.
-
2021 (11) TMI 774 - ITAT MUMBAI
Validity of assessment u/s 153A - bogus LTCG - search action on the premises of Prraneta Industries Ltd. revealed that this entity was not carrying our any business activities and had no underlying assets - HELD THAT:- We find that the assessee had filed original return of income on 20/07/2011 and search operations were carried out on assessee group on 25/07/2013. It is quite evident that on the date of search, no assessment proceedings were pending against the assessee and no notice u/s. 143(2) was ever issued to the assessee till the date of search. The time limit for issuance of such notice had already expired on 30/09/2012 i.e. within 6 months from the end of relevant assessment year. Thus, AY 2011-12 was a non-abated year. In such a case, the additions which could be made has necessarily to be on the basis of incriminating material found by the department during the course of search operations as held by Hon'ble Bombay High Court in CIT Vs. Continental Warehousing Corporation [2015 (5) TMI 656 - BOMBAY HIGH COURT]
There must be a nexus between the statement recorded and the evidence/material found during search in order to sustain additions on the basis of recorded statement. Similar is the view of Hon'ble High Court in an earlier judgment of CIT Vs. Sunil Aggarwal [2015 (11) TMI 286 - DELHI HIGH COURT] wherein Hon'ble Court refused to give any evidentiary value to the statement made by the assessee u/s. 132(4) as the department could not find any unaccounted money, article or thing or incriminating document either at the premises of the company or at the residence of managing director or other directors.
In such circumstances, the finding of the Tribunal that the statement of managing director recorded patently u/s. 132(4) did not have any evidentiary value, was upheld. The ratio of all these decisions makes it clear that the surrendered income must be correlated with some incriminating material found during the course of search action so as to justify the addition. We find that there is no such incriminating material in the case of the assessee which would show that the transactions under consideration were sham transactions and there was any connection/nexus between the assessee and the group entities of Shri Shirish C. Shah.
This legal issue stood covered in assessee's favor by the decision of SMC bench of Tribunal rendered in the case of another assessee of the group i.e. Smt. Reena A. Ajmera [2021 (3) TMI 917 - ITAT MUMBAI]
We concur with the submissions of Ld. AR that in the absence of any incriminating material, the additions could not be made in the hands of the assessee as per settled legal proposition. Accordingly, the impugned additions stand deleted. The legal ground raised by the assessee stand allowed.
-
2021 (11) TMI 773 - ITAT DELHI
Delayed payment of employees' contribution to PF and ESI - allowability of employees' contribution to PF and ESI if deposited after the due date prescribed under the relevant Act, but, before the due date of filing of return of income u/s. 139(1) - Assessee submitted that the addition is not justified since the assessee has deposited the employees' contribution to PF and ESI before the due date of filing the return of income - HELD THAT:- Admittedly, the assessee, in the instant case, has deposited the employees' contribution to PF and ESI after the relevant date prescribed under the PF and ESI Act, but, before the due date of filing the return of income.
In the case of PCIT vs. Pro Interactive Service (India) Pvt. Ltd. [2018 (9) TMI 2009 - DELHI HIGH COURT] has held that 'the legislative intent was/is to ensure that the amount paid is allowed as an expenditure only when payment is actually made. The Hon'ble High Court has further held that legislative intent and objective is not to treat belated payment of Employee's Provident Fund (EPD) and Employee's State Insurance Scheme (ESI) as deemed income of the employer under the Act.
Tribunal in the case of CIT v. Dee Development Engineers Ltd.[2021 (4) TMI 393 - ITAT DELHI] has decided the issue in favour of the assessee holding that no disallowance u/s. 36(1)(v) r.w.s. Section 2(24)(x) can be made if the employees' contribution to PF and ESI are deposited after the due date prescribed under the relevant Acts, but, paid before the due date of filing of return. Since the assessee, in the instant case has, admittedly, deposited the employees' contribution to PF and ESI before the due date of filing of the return of income, therefore we hold that no disallowance u/s. 36(1)(v) r.w.s. Section 2(24)(x) can be made in the instant case - Decided in favour of assessee.
-
2021 (11) TMI 772 - ITAT KOLKATA
Validity of notice u/s 143(2) - Jurisdiction of ACIT to issue notice - Proof of ay valid transfer by the competent authority from Income Tax Officer to ACIT - HELD THAT:- Jurisdiction to transfer case from one Assessing Officer to other Officer lies with the Officers as mentioned in section 127(1) who are of the rank of Commissioner or above. No document has been produced on the file by the Department to show that the case was transferred by the competent authority from Income Tax Officer to ACIT. The notice u/s 143(2) has been issued by ACIT which was beyond his jurisdiction and the same is therefore, void ab initio.
Under the circumstances, the assessment framed by ACIT, is bad in law as he did not have any pecuniary jurisdiction to frame the assessment. The issue relating to the pecuniary jurisdiction also came into consideration before the Coordinate Bench of the Tribunal [2021 (2) TMI 181 - ITAT KOLKATA], wherein the Tribunal further relying upon various other decisions of the Coordinate Benches of the Tribunal has decided the issue in favour of the assessee and held that the assessment framed by Assessing Officer who was not having pecuniary jurisdiction to frame such assessment was bad in law. - Decided in favour of assessee.
assessment order passed u/s 143(3) of the Act by the ACIT being without jurisdiction is bad in law and the same is accordingly set aside. - Decided in favour of assessee.
-
2021 (11) TMI 771 - ITAT DELHI
Delayed payment of employees’ contribution to PF & ESI - Addition under section 36(1)(va) - Contribution were paid late in terms of the provisions of ESIC and EPF, but before the filing of return of income for the present period - HELD THAT:- Since in the instant case the assessee admittedly has deposited the employees’ contribution to PF & ESI before the due date of filing of the income tax return, therefore, respectfully following the decisions INSTA EXHIBITIONS PVT. LTD, C/O. CHACHAN & LATH [2021 (8) TMI 1235 - ITAT DELHI] and PRO INTERACTIVE SERVICE (INDIA) PVT. LTD. [2018 (9) TMI 2009 - DELHI HIGH COURT] hold that the Ld. CIT(A) is not justified in sustaining the adjustment made by the A.O-CPC on account of belated payment of employees’ contribution to PF & ESI. Therefore, set aside the order of the Ld. CIT(A) and direct the A.O. to delete the disallowance. The grounds raised by the assessee are accordingly allowed.
-
2021 (11) TMI 770 - ITAT CHANDIGARH
Income from house property - ALV determination - determination of income from house property as governed by the provisions of chapter IV-C of the Act - whether Income to be assessed basis actual rent received? - Revenue contends the same to be assessable at fair market rent determined on the basis of report of a Govt. approved valuer - HELD THAT:- As per the facts of the case the assessee had returned actual rent received of ₹ 6,50,000/- and deducted expenses therefrom disclosing income of ₹ 4,09,830/-,while the Revenue has determined the fair market rent relating to assesses share of property at ₹ 14,87,604/- based on valuation report of a govt. approved valuer.
Revenue while doing so has simply accepted the Valuation Report as sacrosanct for the purpose of determining the fair rental value of the property without undertaking any exercise for determining its municipal value or standard rent, when as per the Ld.CIT(A) himself and as per law interpreted by courts in this regard, these are the guiding factors for determining the annual rental value of the property and any deviation from the same is to be based on evidence showing that it is wrong. We find the entire exercise of the Revenue Authorities in the present case for determining the annual ALV of the property as being arbitrary. No reason has been given for adopting the fair rent determined by the valuer as against the municipal valuation or of the standard rent of the property, which has not even been determined in the present case.
Adoption of the fair rent as determined by a govt. approved valuer as the annual rental value of the property owned by the assessee is not justified and the same is, therefore, rejected. The income so determined by the Revenue Authorities of ₹ 14,87,600/- is set aside and that returned by the assessee is restored .
............
|
