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Income Tax - Case Laws
Showing 81 to 100 of 674 Records
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2021 (4) TMI 1165
Stay orders - Recovery proceedings - Amount recovered from petitioner over and above the amount as per instructions, memoranda, circular towards demand of tax - refund orders to the extent that they seek adjustment against demand for AY 2013- 14, and writ prohibiting and restraining recovery by adjustment of refunds against the demand for the AY 2013-14 is sought with a direction to refund of amounts referred to in prayer clauses (e) to (h) - HELD THAT:- Set off of refund under the clause is to be done by using details of income tax demand lying against the person uploaded on to the system. The exercise of power to have set off / adjustment of refund is regulated by legislative provisions and instructions. The details referred to in the clause would have to correspond to the provisions and instructions operating.
The tax demand for AY 2013-14 is in dispute and is pending before appellate authority. Having regard to instructions, circulars and memoranda issued from time to time, as referred to on behalf of petitioner, which are not disputed by the respondents, it appears to be expedient that the assessing officer refrains from recovering tax dues demanded for AY 2013-14. In the circumstances, a restraint is called for from recovering amount over and above, as per instructions, circulars and guidelines issued by CBDT, from time to time. The amount recovered from petitioner if is over and above as per instructions, circulars, the excess collection over and above the amount required for stay may have to be returned to petitioner and the refunds would not be adjusted till disposal of the appeal.
The amount recovered from petitioner over and above the amount as per instructions, memoranda, circular towards demand of tax for the AY 2013-14 pending in appeal would be returned to the Petitioner with interest according to law and refunds of amounts over and above the amount as per instructions / guidelines may not be adjusted towards tax demand for AY 2013-14 till disposal of appeal.
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2021 (4) TMI 1163
Addition towards deemed rental income on stock-in-trade of unsold flats/bungalows - AO opined that the assessee ought to have offered deemed notional rental income on such vacant flats/bungalows - assessee submitted that the flats/bungalows were its stock-in-trade, from which no income could be taxed under the head ‘Income from house property’ - HELD THAT:- As flats/bungalows are occupied by the assessee owner; business of property development is carried on by the assessee; the occupation of the flats etc. is for the purpose of business; and profits of such business are chargeable to income-tax. Ergo, all the four conditions for exclusion from section 22 of the Act are cumulatively satisfied in the present case.
A close scrutiny of the provision inducted by the Finance Act, 2017, transpires that where a property is held as stock-in-trade which is not let out during the year, its annual value for a period of one year, which was later enhanced by the Finance Act, 2019 to two years, from the end of the financial year in which the completion certificate is received, shall be taken as Nil. The amendment has been carried out w.e.f. 1.4.2018 and the Memorandum explaining the provisions of the Finance Bill also clearly provides that this amendment will take effect from 01.04.2018 and will, accordingly apply in relation to the assessment year 2018-19 and subsequent years.stantly, we are concerned with the assessment year 2013-14. As such, the amendment cannot apply to the year under consideration. In the absence of the applicability of such an amendment, no income can be said to have accrued to the assessee from unsold flats available as stock-in-trade. We, therefore, overturn the impugned order on this score and delete the addition of ₹ 1.47 crore sustained in the first appeal.
Addition u/s.41(1) - a company, namely, M/s. JVS Komatsco Industries Pvt. Ltd. (JVSK) had to receive a sum from the assessee and the said amount was written off by the company as bad debt in its accounts for the year under consideration - HELD THAT:- The controversy has arisen out of certain purchase transactions of the assessee from JVSK during the course of its business. JVSK wrote off the sum in question its books of account, but the assessee chose not to show the corresponding income. The ld. AR submitted that the amount of ₹ 77,021/- represents the amount which was deducted by it from the invoices raised by JVSK and only the net amount was debited in its accounts.
AR prayed for giving one opportunity to the assessee to place the necessary details on record to prove its case. In the given facts and circumstances, we are of the considered view that it would be in the interest of justice if the impugned order on this score is set aside and the matter is restored to the file of the AO for deciding this issue afresh after allowing hearing to the assessee. In case the assessee succeeds in proving that it recorded only the net value (after deduction) at the time of incurring expenses but JVSK recorded its gross invoice value only and the sum of ₹ 77,021/- is equivalent of the differential amount of Rs.i, then no addition would be called for u/s 41(1) of the Act. In the otherwise scenario, the AO will deal with the issue as per law.
Disallowance u/s.14A - HELD THAT:- As found as an admitted position that the assessee, in fact, did not earn any exempt income from the investment made in Marigold Properties during the year under consideration. The Hon'ble Delhi High Court in Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] has held that if there is no exempt income, there can be no question of making any disallowance u/s 14A of the Act. Similar view has been taken by the Hon'ble Delhi High Court in CIT vs. Holcim India P. Ltd. [2014 (9) TMI 434 - DELHI HIGH COURT] More recently the Hon’ble jurisdictional High Court in Pr. CIT VS. Kohinoor Projects Pvt. Ltd. [2020 (1) TMI 1161 - BOMBAY HIGH COURT]has held that in the absence of any exempt income, there cannot be any disallowance of expenses u/s 14A.
As the assessee in the instant case admittedly did not earn any exempt income during the year, respectfully following the ratio of the above decisions, we hold that no disallowance was called for. The impugned order is overturned on this score and the sustenance of the disallowance is deleted.
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2021 (4) TMI 1162
Unexplained cash credit - sources for the advances - HELD THAT:- As far as the receipt of return of advance by Smt. G. Surekha is concerned, when summons were issued to her, her husband Shri G. Ratna Rao appeared and submitted the explanation. Therefore, the identity of Smt. G. Surekha is established. As far as the explanation given that the cheques were given in the name of her husband’s friend Mr.Mohd Abdul Samad is concerned, find that it is supported by the Bank statement. It is also established that Smt.G.Surekha is not in any way related to the assessee.
Therefore, the confirmation given by Smt. Surekha is to be examined and considered on its own legs. It is to be noted that the assessee has not filed the confirmation of Mr Mohd Abdul Samad, but the cheques are undisputedly issued in the name of Mr.Abdul Samad. In the earlier A.Y, the assessee has explained the sources for the advances given for purchase of the property and the said assessment was reopened and the sources were accepted by the Assessing Officer. Therefore, the transaction of giving advance by the assessee is proved.
What is left to be proved is that the said amount has been returned by Smt. G. Surekha. All the cash deposits to the extent of ₹ 14.00 lakhs are allegedly made by Smt. G. Surekha. When the Assessing Officer for the A.Y 2008-09 has accepted that the assessee has given advance for purchase of a property and since there is no purchase of property during the relevant A.Y, the circumstantial evidence is in favour of the assessee that he has received back the advance paid in the earlier A.Y. Therefore, the sources for the extent of ₹ 14.00 lakhs is to be deemed as explained by the assessee.
With regard to the other balance i.e. cash withdrawals which were utilized for other purposes than the deposits into the Bank, I do not find any reason to interfere with the order of the CIT (A). The addition of such an account is accordingly confirmed. Assessee’s appeal is partly allowed.
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2021 (4) TMI 1161
Reopening of assessment u/s 147 - eligibility of reasons to believe - addition u/s 69A - HELD THAT:- Assessing Officer is not suppose to arrive at the final conclusion. He is supposed to reach at a reasonable belief, which a prudent man will arrive at, that the income has escaped assessment. It has to be a prima facie case regarding escapement of income. AO is not passing the final judgement. In the case in hand there is no two opinion that the assessee had bank account in which substantial cash was being deposited from various parts of the country. It is also a fact that the assessee had not disclosed this account to the department and also not filed his return of income for the relevant assessment year. The Assessing Officer has recorded all this in his reasons and then he took the approval of the competent authority as provided in the Act. Everything is in order. The satisfaction and the reason has to be that of Assessing Officer, not of anybody else - the Assessing Officer had enough reasonable and actionable information to arrive at a particular decision. Therefore, the ground challenging reopening u/s 147 is dismissed.
We do not find any infirmity in the finding of Ld.CIT(A) as the assessee has not supported his submissions by filing any contrary evidences. Hence, Ground of appeal raised by the assessee are dismissed.
Addition u/s 69A on Unexplained money - We do not see any infirmity into the findings of the Ld.CIT(A) as the assessee had only made a bald statement without giving any supportive evidences regarding his business. No detail is furnished by the assessee regarding whom spare parts as claimed by the assessee were supplied and the complete details of parties to whom he supplied computer parts.
In the absence of such material evidences, we do not see any reason to interfere in the findings of the authorities below. Therefore, Ground of appeal raised by the assessee are rejected and same are dismissed.
Addition made in respect of the salary income - We find that the Assessing Officer did not make any inquiry from the employer of the assessee whether he had actually received the salary.
Merely, offer made by the assessee in our considered view, ought not to have been taken as a conclusive evidence of earning salary income by the assessee. Therefore, in the absence of any conclusive evidence that the assessee infact had earned salary from M/s. Oldy Goldy Computers, the Assessing Officer was not justified in taking the addition and making the addition on account of earning of salary income. Moreover, if it is presumed that the assessee had earned salary income in that event, the Assessing Officer should have accepted source of deposit made in bank account. We, therefore, direct the Assessing Officer to delete this addition. Thus, Ground of appeal raised by the assessee is allowed.
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2021 (4) TMI 1160
Capital gain computation - valuation of property u/s 50C by adopting the value as assessed by the DVO before the Ld.CIT(A) - HELD THAT:- We find that there is no dispute with regard to fact that fair market value determined by the DVO at ₹ 8,89,63,168/- against the actual sale consideration of ₹ 8,78,00,000/- as disclosed in Sale Deed. The resulting difference is ₹ 11,63,168/- which is 1.02%.
As relying on MARIA FERNANDES CHERYL VERSUS INCOME TAX OFFICER INTERNATIONAL TAXATION 2 (3) (1) , MUMBAI [2021 (1) TMI 620 - ITAT MUMBAI] we direct the Assessing Officer to delete the addition. Thus, Grounds of appeal raised by the assessee in this appeal are allowed.
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2021 (4) TMI 1156
Capital gain on sale of land - nature of land sold - treatment to assessee’s land sold as a capital asset - HELD THAT:- No merit to accept the foregoing Revenue’s argument as the amended Section 2(14) Explanation (iii) clause(b) reads ‘as the Central Government may having regard to the extent and scope for, urbanization of’ that area and other relevant consideration, specify in this behalf notification in the official gazette’.
It therefore emerges that once the amendment to the above statutory provision came vide Finance Act, 2013 w.e.f. 01-04-2014 the assessee’s case would continue to be governed by the earlier un-amended provisions as we are in AY.2011-12. This is also not the Revenue’s stand that assessee’s land(s) deserved to be treated as a capital asset as per the unamended proviso since covered by any notification issued in this behalf from the Central Government. I therefore direct the Assessing Officer to delete the impugned long term capital gain addition on this count alone.
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2021 (4) TMI 1155
Fringe benefit tax on account of expenditure pertaining to staff towards electricity consumption - statutory obligation to provide electricity to the employees at their residential premises as per National Coal Workers' Agreement - HELD THAT:- On going through the above agreement entered into between the representatives of Central Trade Unions with Hon’ble Minister of Coal & Mines and Secretary, Govt. of India, Department of Coal & Chairman, Coal India ltd. on 12th January, 2004, we find that the CBDT has not been recognized the said agreement and, therefore, this agreement cannot override the income-tax Act, which is enacted by the Parliament.
The above agreement is not statutory and only a facility provided to the employees in a particular sector. In view of the above discussion, we do not find any infirmity in the orders of the CIT(A) in confirming the order of the AO wherein the AO has made an addition in the hands of the assessee towards Fringe benefit tax on account of expenditure pertaining to staff towards electricity consumption and upholding the orders of CIT(A) in all the appeals under consideration, we dismiss the grounds raised by the assessee in all the AYs under consideration.
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2021 (4) TMI 1154
TP adjustment in respect of Specified Domestic Transactions (SDT) - whether AO/TPO/DRP has erred in law and in facts by determining an adjustment to specified domestic transactions (SDT) by applying provisions omitted from statute book. - HELD THAT:- As following the binding decision rendered by Hon’ble High Court of Karnataka in the case of Texport Overseas P Ltd [2017 (12) TMI 1719 - ITAT BANGALORE] we hold that the reference to the TPO in respect of specified domestic transactions mentioned in clause (i) of sec.92BA is not valid, as the said provision has been omitted. Accordingly, we direct the AO to delete the addition relating to specified domestic transactions made u/s 92CA of the Act.
As pointed out by Ld D.R, the co-ordinate bench, in the case of Texport overseas P Ltd, has restored the matter to the file of the A.O. with the direction to examine the claim of expenditure in accordance with the provisions of section 40A(2) of the Act. Following the same, we restore this issue to the file of the AO with the direction to examine the claim of expenditure mentioned above in terms of the provisions of section 40A(2) of the Act.In the result, the appeal of the assessee is treated as allowed for statistical purposes.
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2021 (4) TMI 1153
Interest subsidy received by the appellant under Technology Upgradation Fund Scheme (TUFS) for Textile and Jute Industries - MAT computation u/s 115JB - reducing the amount of subsidy from the book profit while computing u/s 115JB - HELD THAT:- As relying on own case [2019 (2) TMI 1888 - ITAT AHMEDABAD], we consider that issue raised in grounds no. 1 to 1.3 as above covered in favour of the assesse after following the decision of Co-ordinate Bench as supra that the interest subsidy is required to be treated as capital receipt of non-taxable nature. Therefore, similar to the direction laid down by the Co-ordinate Bench for A.Y. 2012-13, we restore this issue to the file of the A.O. for verification and to exclude the subsidy from the ambit of taxation as directed in the decision of the Co-ordinate Bench. Therefore, these grounds of appeal of the assessee are allowed for statistical purpose.
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2021 (4) TMI 1152
Disallowance u/s 14A - AO noticed that assessee has made huge investments in shares and securities, but did not make suo moto disallowance of any expenses relatable to exempt income and hence, invoked Rule 8D of Income Tax Rules, 1962 and computed disallowance - CIT-A deleted additions made towards disallowance u/s.14A by holding that when there is no exempt income earned for the relevant assessment year, then there cannot be any disallowance relatable to such exempt income - HELD THAT:- The issue of disallowance of expenses relatable to exempt income u/s.14A, in a situation where there is no exempt income earned for the relevant assessment year has been subject matter of deliberations by various High Courts, including the case of M/s. Redington India Ltd. [2017 (1) TMI 318 - MADRAS HIGH COURT] in the light of the provisions of section 14A of the Act, where it was clearly held that provisions of section 14A r.w.r 8D cannot be made applicable in a vacuum i.e., in the absence of exempt income.
The Hon'ble Supreme Court in the case of CIT vs. Chettinad Logistics Pvt.Ltd. [2018 (7) TMI 567 - SC ORDER] has upheld the findings of the Hon’ble Madras High Court that section 14A cannot be invoked, where no exempt income was earned by the assessee in the relevant assessment year. In this case, the learned CIT(A) has recorded categorical finding that the assessee has not earned any exempt income for the relevant assessment year. Therefore, we are of the considered view that findings recorded by the learned CIT(A) in light of the decision of Hon’ble Jurisdictional Madras High Court in the case of M/s. Redington India Ltd. Vs.Addl.CIT (supra) is in accordance with law and does not call for any interference. - Decided in favour of assessee.
Disallowance of depreciation of plant and machinery - AO disallowed depreciation claimed on plant and machinery on the ground that although plant and machinery was installed and commissioned before 30.03.2013, but the same has not been put to use in the business of the assessee - HELD THAT:- In this case, on perusal of various details filed by the assessee including commissioning report of plant and machinery, we find that all plant and machinery were acquired and installed before the end of the financial year. In fact, the assessee has placed on record production details of finished goods from newly installed plant and machinery. Assessing Officer has erred in disallowing depreciation on plant and machinery on assumption and surmises that in one day so much units of finished goods cannot be produced without understanding fact that in one day so many lakhs of units can be produced depending upon installed capacity of the plant and machinery.
In this case, the observations of the Assessing Officer that so much units cannot be produced in one day was nothing but assumption or surmises, but not based on any facts and figures. Therefore, we are of the considered view that on this ground depreciation claimed on plant and machinery which were installed and put to use in the business of the assessee cannot be denied. Be that as it may, even assuming for a moment, the asset was not put to use in the business of the assessee, but when the plant and machinery is installed and ready for use in the business for the relevant assessment year, then claim of depreciation can be allowed. There is no error in the findings recorded by the learned CIT(A) to delete disallowance of depreciation on plant and machinery. - Decided in favour of assessee.
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2021 (4) TMI 1151
Rectification u/s 254 - HELD THAT:- Having gone through the order of the Tribunal and also the grounds of appeal raised by the Revenue, we find that there is an inadvertent mistake in disposing of the appeal of the Revenue by not dealing with all the grounds raised by the Revenue.
Since all the grounds were not adjudicated, we deem it fit and proper to amend last line of para No.6 of the ITAT order.
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2021 (4) TMI 1150
Reopening of assessment u/s 147 - addition u/s 68 - Bogus LTCG - HELD THAT:- From the details furnished by the assessee before the Assessing Officer as well as before the learned CIT(A), find the assessee has demonstrated that he had sold 15,000 shares of M/s. DMC Education Ltd., during the A.Y. 2011-12 for a consideration and after deducting the purchase cost of ₹ 60,000, shares of which were acquired in A.Y. 2006-07 (5,000 shares) and subsequent bonus shares, the assessee after deducting the purchase cost and transfer expenses had declared Long Term Capital Gain of ₹ 1,29,903/-. Therefore, once, the assessee had declared such income and claimed the same as exempt, the Assessing Officer without verifying the return and without independent application of mind could not have reopened the assessment on the basis of report from the Investigation Wing, which is on account of borrowed satisfaction and not independent application of mind. Thus, find merit in the argument of the learned counsel for the assessee that such reopening is based on wrong appreciation of facts and on borrowed satisfaction.
It has been held in various decisions that when the reopening of the assessment is based on incorrect or wrong appreciation of facts, such reopening is not in accordance with law. It has also been held in various decisions that when the reopening is made on the basis of report of the Investigation Wing and without independent application of mind by the Assessing Officer to the return field by the assessee, such reopening of assessment is also not in accordance with law and has to be quashed.
Since, in the instant case, the Assessing Officer has acted mechanically on the basis of report from the Investigation Wing and without independent application of mind and the reopening of assessment is on wrong appreciation of facts, therefore, such reopening of the assessment, in our opinion, is not in accordance with law. - Decided in favour of assessee.
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2021 (4) TMI 1141
Addition as headless deemed income - Unaccounted income u/s. 68 to section 69D - Appellant had disclosed the same as undisclosed stock as evident from profit & loss account, stock record etc. - CIT(A) held that the value of excess stock found during survey was not to be assessed as business income u/s. 28 - HELD THAT:- As stated provisions of section 115BBE, it is noticed provision of section 115BBE(2) has been inserted by the Finance Act 2016 w.e.f. 01.04.2017 which specifically say that no deduction in respect of any expenditure or allowance or set off any loss shall be allowed to the assessee under any provision of the act in computing his income referred to in clause (a) of sub-section (1). In sub-section (2) of section 115BBE as introduced by Finance Act, 2012 only disallowance of expenditure or other allowance was considered against unaccounted income u/s. 68 to section 69D but business loss was not covered. It is only by Finance Act, 2016 w.e.f. 01.04.2017 it is inserted in the provision to deny benefit of set off of any loss.
Therefore, in the case of the assessee, if we reduce the business income then we shall arrive at loss In that case the amount of ₹ 50,00,000/- will become taxable under the head “income from other sources”. But a set off of business loss of ₹ 49,70,470/- shall become allowable since the provision to deny set off of loss is introduced w.e.f. 01.04.2017 in section 115BBE of the Act. Even under these circumstances also, the assessee will derive the gross total income of ₹ 29,530/- . Since the case of the assessee is pertained to assessment year 2015-16, therefore, in the light of the above facts and findings, the appeal of the assessee is allowed.
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2021 (4) TMI 1140
TDS credit u/s 199 - AO disallowed the assessee's claim on credit of TDS on the ground that the Subscription Charges were not offered to tax in the return of income - assessee contended that it is only a collection agent for M/s.Sun TV Network Limited and that the corresponding subscription income derived from pay channels stood accounted/offered as income in the hands of M/s.Sun TV Network Limited - AO held that the TDS credit relevant to subscription charges could not be allowed in the assessee's hands in view of proviso 1 & 2 to Section 199 of the Income Tax Act - assessee strenuously contended that the amounts received by them from various Cable Operators cannot be construed as their income, but represents the income of their principal viz., M/s.Sun TV Network Limited - HELD THAT:- As per Section 199(2), credit for TDS can be allowed only when the corresponding income is offered for taxation in the year in which such TDS is claimed and deduction of TDS was allowed without the corresponding income being declared in the Profit and Loss Account.
As per the Agreement entered into between the respondent and M/s.Sun TV Network Limited and for practical purposes, the invoices were raised by them on various Cable Operators and the TDS certificates were issued by the payers (i.e.) the Cable Operators in the name of the respondent – assessee, the respondent is entitled to claim the credit for the TDS certificates. Merely because the income has been offered and processed in the hands of M/s.Sun TV Network Limited, credit for TDS deducted in the name of the respondent – assessee cannot be denied. It is not in dispute that the respondent – assessee has remitted the entire gross amount received from the Cable Operators to M/s.Sun TV Network Limited.
The amount remitted by the respondent to M/s.Sun TV Network Limited includes the amount of TDS deducted by the Cable Operators at the time of payment made by them to the assessee - in lieu of the services rendered by the respondent – assessee, they are entitled to receive the fixed commission.
Since tax has already been deducted and paid to the Government at the time of making collections, the assessee is entitled to get credit of the same while receiving the commission income. M/s.Sun TV Network Limited had engaged the services of the respondent for collection of Subscription Charges against the commission. However, the Cable Operators, at the time of payment of subscription, deducted the tax at source and remitted the remaining amount to the assessee. The subscription collected by the assessee cannot be construed as its income and hence, the same is not taxable in the hands of the assessee. Further, the amounts collected by the assessee are credited to separate account viz., “Subscription Charges”. The said account was debited at the end of the Financial Year when the amounts are paid to M/s.Sun TV Network Limited. Since the subscription collected by the assessee from various Cable Operators are not the income of the assessee, the same were not shown in the Profit and Loss Account. The subscription amount is the income of M/s.Sun TV Network Limited and as such, the same is taxable in the hands of M/s.Sun TV Network Limited. The levy of tax on the respondent – assessee would amount to double taxation.
As rightly contended by the learned senior counsel appearing for the respondent, since the amended provision Rule 37BA(2)(i) came into effect only on 01.11.2011, the same is not applicable to the cases on hand. Appellate Tribunal was right in holding that the assessee is eligible for TDS credit.
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2021 (4) TMI 1139
Levy of penalty u/s 271 (1) (c) - Appellant has not established reasonable cause for the non submission of the returns within the time prescribed u/s 153(1) - Scope of amendment to Explanation 3 to Section 271(1)(c) - whether the Income Tax Appellate Tribunal was correct in upholding the orders of the Assessing Officer who in fact had 'allegedly' given retrospective effect to Explanation 3 to Section 271(1)(c)? - HELD THAT:- It is not the case of the appellant that he had filed the Income Tax Returns for all the three years namely 1999-2000, 2000- 2001 and 2001-2002 within the specified period as mentioned in sub section 1 of Section 153 of Income Tax Act. As such the due dates for filing these returns were 31.10.1999, 31.10.2000 and 31.10.2001 respectively. While this being so, these returns were filed on 07.04.2005, 15.06.2005 and 19.12.2005 respectively for the assessment years. These filing of returns were also subsequent to the issue of notice dated 23.12.2004 under Section 148 of the Act after the survey under Section 133-A of the Act. It is also pertinent to mention that the survey under Section 133 A of the Act was conducted subsequent to which the audit of accounts was completed and the consequent Income Tax Returns were filed. Explanation 3 to Section 271(1)(C) is categorical as to where concealment of income can be deemed. Moreover, in the instant case the Income Tax Appellate Tribunal observation is significant.
It is not also the case of the appellant that the Income Tax Returns were filed before the amendment to Explanation 3 to Section 271(1)(c) was brought in. Therefore, there is no substance in the contention of the learned counsel for the appellant in claiming that the said amendment has been applied retrospectively. Interestingly, the learned counsel for the appellant has tried to take shelter that the words "Who has not previously been assessed under this Act" which was a part of the Explanation 3 to Section 271(1)(C) prior to 01.04.2003 and omitted thereafter stating that he was an existing assessee even prior to the amendment and therefore the amended explanation was not applicable to him. However, this point has already been dealt with and clarified and needs no further elaboration. Appeal dismissed.
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2021 (4) TMI 1134
Computation of deduction u/s 10A - tribunal held that the travelling expenditure incurred in foreign currency is to be reduced from the total turnover also for the purpose of computation of deduction - HELD THAT:- As decided in M/S. SRA SYSTEMS LTD. [2021 (3) TMI 977 - MADRAS HIGH COURT] 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. Decided in favour of the assessee.
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2021 (4) TMI 1131
Penalty imposed u/s 271AAB - Defective notice - Non specification of clear charge - HELD THAT:- As rightly pointed out by the assessee, Section 271AAB of the Act, which deals with penalty consists of three contingencies. Therefore, the Assessing Officer should point out to the assessee as to under which of the three clauses, he chooses to proceed against the assessee so as to enable the assessee to give an effective reply. Since the same has not been mentioned, the assessee has been denied reasonable opportunity to put forth their submissions.
The Tribunal, has verbatim reproduced the penalty notice and we find that the notice is absolutely vague and none of the irrelevant portions had been struck off nor the relevant portions had been marked or indicated. Hence, the Tribunal is right in observing that the penalty could not have been levied based on such defective notice and more particularly, when the assessee has been strenuously canvassing the jurisdictional issue from the inception.
The decisions of the Karnataka High Court in the cases of Manjunatha Cotton and Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT]and SSA's Emerald Meadows [2015 (11) TMI 1620 - KARNATAKA HIGH COURT] and the decision of this Court in the case of Babuji Jacob [2020 (12) TMI 574 - MADRAS HIGH COURT] clearly support our above conclusion. For all the above reasons, we find no grounds to interfere with the common order passed by the Tribunal. - Decided in favour of assessee.
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2021 (4) TMI 1127
Validity of reopening of assessment u/s 147 - assessment order had been passed on the amalgamating company - HELD THAT:- As the notice u/s.148 of the Act dated 30/03/2016 was issued in the name of non-existent entity and re-assessment was also framed in the name of non-existent entity.
In view of the aforesaid observations and on the facts and circumstances of the instant case and the judicial precedents relied upon hereinabove, we hold that notice u/s.148 of the Act dated 30/03/2016 was issued in the name of (non-existent entity) PHL Holdings Pvt. Ltd. and hence CIT(A) has rightly quashed the same. We affirm the same. Appeal of the Revenue is dismissed.
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2021 (4) TMI 1126
Ex-parte order u/s. 144 of the Act without providing proper opportunity to the assessee of being heard and made certain additions - HELD THAT:- As find merit in the submissions of the Ld. DR. AO had posted the case on several occasions. However, none appeared on behalf of the assessee before the Ld. AO on the given dates of hearing and even before the Ld. CIT(A) the assessee could not improve his case. Hence, the Ld. Revenue Authorities were left with no other option except to pass orders based on the material available on record.
No much strength in the arguments advanced by the ld. AR. However, considering the prayer and the submissions of the Ld. AR and the nature of issues involved in the appeal, in the interest of justice, hereby remit the matter back to the file of Ld. AO for de-novo consideration thereby providing one more opportunity to the assessee of being heard. At the same breath, I also hereby caution the assessee to promptly co-operate before the Ld. Revenue Authorities in their proceedings failing which the Ld. Revenue Authorities shall be at liberty to pass appropriate Orders in accordance with law and merits based on the materials on the record. It is ordered accordingly.
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2021 (4) TMI 1125
Delayed employee's contribution towards Provident Fund - amount paid beyond the due date as specified in the Provident Fund Act.- HELD THAT:- As decided in GUJARAT STATE ROAD TRANSPORT CORPORATION [2014 (1) TMI 502 - GUJARAT HIGH COURT] the assessee has not credit the employees' Contribution to the employees' account in the relevant fund or funds on or before the due date mentioned in the Explanation to section 36(1)(va), the assessee shall not be entitled to deduction of such amount in computing the income referred in section 28
Also decided in M/S MERCHEM LIMITED [2015 (9) TMI 560 - KERALA HIGH COURT] since the assessee had admittedly not paid the remittance of the employees' contribution to the provident fund and ESI within the dates prescribed under the respective Act, the assessee was not entitled to deduction U/s. 43B of the amounts deducted thereunder for and on behalf of the employees. - Decided against assessee.
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