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Income Tax - Case Laws
Showing 141 to 160 of 661 Records
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2021 (8) TMI 1093 - ITAT BANGALORE
Unexplained cash credit under section 68 - no evidence filled in support of the claim of receipt of money from Mr. Suresh Shervegar - HELD THAT:- The documents now sought to be filed by the assessee as additional evidence prima facie shows the source of funds is from Banks and requires examination by the AO and the AO has to be satisfied with the identity, capacity of the creditors and the genuineness of the transaction.
For carrying out this exercise, it is necessary that the impugned order of the CIT(A) should be set aside and the issue with regard to addition u/s 68 has to be remanded to the AO for fresh examination. - Appeal of the assessee is treated as allowed for statistical purposes
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2021 (8) TMI 1092 - ITAT RAJKOT
Rectification of mistake field u/s. 154 - credit of the TDS was not claimed in return of income because of non-appearance in the Form 26AS at the time of filing return of income, however knowing the correct situation, the appellant filed an application for rectification of mistake online - TDS certificates in the name of Joint Venture partner or Director - HELD THAT:- We conquer with the argument of the Ld. A.R. that at the time of filing of original return u/s. 139 the payment of TDS was not reflected in Form 26AS as deductor had not remitted the same in the Government account and as evident from the record and from Form 26AS M/s Aditya Coke Pvt. Ltd. had remitted TDS of ₹ 12,41,617/- on 24/03/2013.
The Hon’ble High Court of Andhra Pradesh in the case of CIT vs. Bhooratnam & Co.. [2013 (1) TMI 478 - ANDHRA PRADESH HIGH COURT] wherein it is held that “ the revenue cannot be allowed to retain tax deducted at source without credit being available to anybody, if credit is not allowed to the assessee, and the joint venture has not filed return of income, then credit of the TDS cannot be taken by anybody. This is not the spirit and intention of law. Therefore, in our view, the Assessing Officer erred in denying the benefit of the TDS mentioned in the TDS certificates filed by the assessee on the ground that the TDS certificate is issued in the name of the joint venture or a director and not the assessee”.
CBDT has also vide instruction No. 5/2013 dated 08/07/2013 even in the cases of mismatch of TDS directed to give credit of TDS when the assessee furnishes the TDS certificate. - In the present case, the appellant furnished the TDS certificate and at the time of filing of original return could not file because M/s Aditya Coke Pvt. Ltd. remitted the TDS in the Government account on 24/03/2013. Therefore same was not reflecting at the time of filing of return.
We set aside this matter back to the tile of the Assessing Officer examine the Form 26AS and other details have been submitted by the appellant before the lower authorities and if it is found that M/s Aditya Coke Pvt. Ltd. has remitted the TDS of ₹ 12,41,617/- in the Government account then will give benefit of the same to the assessee.Appeal filed by Assessee is allowed.
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2021 (8) TMI 1091 - ITAT KOLKATA
Rectification of mistake u/s 154 - total income of the assessee as considered by the Assessing Officer different from total income determined in the assessment order- HELD THAT:- As from Ground raised by the assessee company total income of the assessee for the year under consideration was determined by the Assessing Officer vide an order passed u/s 144 of the Act at ₹ 15,62,97,564/-. However, while computing the tax payable by the assessee in the Income tax computation form attached with the assessment order, the total income of the assessee was wrongly considered by the AO at ₹ 6,00,76,720/- as against the total income of the ₹ 15,62,97,564/- determined in the assessment order. There was thus a clear mistake committed by the AO and since the same was apparent from record, we find merit in the contention of the ld. D/R that it was rightly rectified by the AO vide an order passed u/s 154 of the Act. - no infirmity in the order of the ld. CIT(A) upholding the order of the Assessing Officer u/s 154 of the Act and upholding the same - Appeal of the assessee is dismissed.
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2021 (8) TMI 1090 - ITAT AHMEDABAD
Rectification u/s 254 - recognition of goodwill required or not - pooling of interest method in the scheme of amalgamation - assessee in the scheme of amalgamation did not specify whether it was following pooling of interest method or purchase method of amalgamation - HELD THAT:- The provisions of section 254(2) of the Act empowers the ITAT to rectify the mistake committed by it. But such a mistake aassessee in the scheme of amalgamation did not specify whether it was following pooling of interest method or purchase method of amalgamation.s to be apparent from record. There are various judicial precedents on the concept what a mistake apparent from record is. Generally, wherever two views are possible with respect to any issue/question, it is implied that the mistake cannot be said as apparent. In this respect we find support and guidance from the observationt in the case of ACIT-Rajkot vs. Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT] where the Hon’ble Apex Court defined the term apparent mistake in context of section 254(2).
This fact has not been disputed. The relevant finding of the ITAT is on para 31.7 to 31.9 of the order. It was also recorded that there is no dispute qua the fact of making the payment by way of issuing the shares which is a valid mode of payment as held by the Hon’ble Delhi High Court in case of CIT vs. Mira Exim Ltd [2013 (10) TMI 228 - DELHI HIGH COURT]. Accordingly, the ITAT after considering all these facts have recognized the goodwill in the books of accounts of the assessee.
Revenue has not pointed out any mistakes with respect to the above finding of the ITAT. Therefore it cannot be said that there is a mistake apparent from record arising from the order of the ITAT.
Principles laid down by the Hon’ble Supreme Court in the case of CIT vs. Smifs Securities Ltd [2012 (8) TMI 713 - SUPREME COURT] are not applicable in the case on hand. In this regard, we note that once the ITAT has recognized the goodwill in the books of the assessee which is a tangible assets as held by the Hon’ble Supreme Court. Therefore the reference made to the above judgment of the Hon’ble Supreme Court was not made in the context of AS 14 and AS 103. But it was referred to hold that the goodwill being intangible asset is eligible for the depreciation.
We do not find that there is any mistake in the order of the ITAT which is apparent from record. Hence, we disagree with the contention of the learned DR. Thus the MA filed by the Revenue is dismissed.
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2021 (8) TMI 1089 - ITAT DELHI
Rectification of mistake u/s 254 - Assessee contended that, tribunal has not considered annexure 12, 14 and 16 of the paper book and also ignored the affidavit placed on page no.10 and 11 of the paper book - Tribunal has not considered the order passed in the case of Kavita Verma - HELD THAT:- It is clear that the Tribunal had considered all the evidences and the case law as relied upon by the learned counsel for the assessee and took conscious decision. Therefore, the contention of the assessee would not fall within the ambit of section 254 of the Act. Hence, the miscellaneous application filed by the assessee is hereby dismissed, being devoid of any merit.
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2021 (8) TMI 1088 - ITAT SURAT
Exemption u/s 11 - denial of registration under section 12AA(1)(b)(ii) to ITAT Bar Association - CIT’s jurisdiction to denied deduction - HELD THAT:- So far as grant of registration u/s 12AA of the Act is concerned, the Ld. CIT’s jurisdiction is only to verify the objects of the institution and genuineness of the activities, meaning thereby that he has to satisfy himself that objects are charitable in nature and activities being carried on or to be carried on are genuine, meaning thereby that they are in consonance for achieving of charitable objects and nothing else.
From a reading of section 12A and 12AA of the Act what is intended thereby is only a registration simplicitor of the entity/trust. The registration u/s 12AA of the trust has been made a condition precedent for claiming the benefits of the exemption u/s 11 and 12 of the Act. While processing the application for registration u/s 12AA of the Act, no examination of the modus of the application of the funds of the assessee is called for. The stage for consideration of the application of the funds vis-a-vis objectives of the trust arises at the time of assessment by the A.O. where benefits are claimed by the assessee in terms of section 11 and 12 of the Act and AO can examine the question as to the nature of the contributions etc. at the time of assessment. At the time of registration of the assessee u/s 12AA is concerned what is to be looked into is whether the assessee trust is a genuine one or whether it is a sham institution floated only to avail the benefits of exemption under the Act.
CIT(E) could have examined only the genuineness of the association and its activities postulated, are to achieve the objects for which it is created. There was no material to show that assessee (ITAT Bar Association) was not genuine or that its activities were not as professed in the MOA and AOA. There was no finding that assessee (ITAT Bar Association) was a sham entity and therefore, we are inclined to set aside the order of the Ld. CIT(E) with the direction to him to consider the application for registration u/s 12AA of the Act, de novo, by passing a speaking order in accordance to law and after giving adequate opportunity to the assessee in accordance to law. Appeal of the assessee is allowed for Statistical purposes.
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2021 (8) TMI 1087 - ITAT SURAT
Revision u/s 263 - irregularities computing deduction claimed u/s 80P(2) - whether interest on savings bank account and interest from fixed deposits are eligible for deduction under section 80P(2)(d) of the Act or not, specially where the assessee has submitted the details of interest on savings bank account and interest on fixed deposit before the AO - HELD THAT:- Assessee has shown income from other sources comprising interest income from savings bank account, fixed deposits, sale proceeds of old newspapers. The AO has examined these issues in respect of interest and interest on fixed deposits, and took a possible view, therefore, order passed by the AO is neither erroneous nor prejudicial to the interest of the Revenue.
Assessee has submitted the details of interest income from savings bank account and interest income from fixed deposits before the AO which is evident from page no.2 of the order of the Assessing Officer passed by him under section 143(3) of the Act, dated 18.10.2016. Just because, the assessee has, by mistake and inadvertently, mentioned the interest on saving bank and interest on fixed deposits under the head “Income from other sources” , does not mean that assessee would not be eligible to claim deduction under section 80P(2)(d) of the Act. Right income should be taxable in the hands of the assessee in the right assessment year. Income returned under an erroneous understanding or misconception of law is not chargeable under the Act [Abdul v CIT [1989 (12) TMI 37 - ALLAHABAD HIGH COURT]].
During the assessment proceedings, the AO has issued notice under section 142(1) of the Act, dated 8th September, 2016, wherein the AO asked the assessee to furnish the details, documents and explanations about the deduction claimed under chapter VIA - Therefore, the AO having examined the submissions and documents filed by the assessee, passed the order under section 143(3) of the Act dated 18.10.2016. We also note that assessment order passed by the assessing officer is sustainable in law, as the Coordinate Bench of ITAT Mumbai in the case of Lands and Co-Operative Housing Society Ltd. [2016 (2) TMI 620 - ITAT MUMBAI] has held that interest earned by Co-Operative Housing Society on Investment with a Co-Operative Bank is eligible for deduction U/s 80P(2)(d) - An order of assessment passed by the Assessing Officer should not be interfered with only because another view is possible, as held by Hon`ble Supreme Court in the case of CIT vs. Green World Corporation [2009 (5) TMI 14 - SUPREME COURT] - Hence, such order passed by the AO is neither erroneous nor prejudicial to the interest of the Revenue. Therefore, we quash the revision proceedings initiated by the learned PCIT under section 263 - Decided in favour of assessee.
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2021 (8) TMI 1086 - ITAT MUMBAI
Deduction u/s 80P(2)(d) - whether interest income derived from deposits with cooperative banks is eligible for deduction under section 80P(2)(d) of the Act or not has not crystallised so far? - HELD THAT:- The coordinate Bench of the Tribunal in the case of Kaliandas Udyog Bhavan Premises Co-op Society Ltd. [2018 (4) TMI 1678 - ITAT MUMBAI] considering various decisions by Hon’ble High Courts and the Tribunal and the provisions of the Act, has held that interest income derived by a co-operative society from investments with co-operative bank, would be entitled for deduction under section 80P(2)(d).
In the case of PCIT vs. Totagars, Cooperative Sale Society [2017 (1) TMI 1100 - KARNATAKA HIGH COURT] has held that for the purpose of section 80P(2)(d) of the Act, co-operative bank should be considered as cooperative society. Similar view has been taken by the Hon'ble Gujarat High court in the case of Surat Vankar Sahakari Sangh Ltd. [2017 (1) TMI 1100 - KARNATAKA HIGH COURT]
Accordingly, following the decision in the earlier case of Totagars Co-operative Sale Society [2017 (1) TMI 1100 - KARNATAKA HIGH COURT] and in the case of Vankar Sahakari Sangh [2016 (7) TMI 1217 - GUJARAT HIGH COURT] the deduction claimed by the assessee under section 80P(2)(d) of the Act in respect interest derived from investments with the cooperative bank is allowed. - Decided in favour of assessee.
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2021 (8) TMI 1085 - ITAT DELHI
Rectification of mistake u/s 254 - grievance of the Revenue is that the Tribunal has granted relief to the assessee and there are factual inconsistencies in the order of Tribunal and there is enough material on records in the form of inventory of Stock & Cash found during the course of survey which has escaped the notice of Tribunal while passing the order - HELD THAT:- Power of rectification u/s 254(2) of the Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from record and not a mistake which requires to be established by arguments and long drawn process of reasoning. Tribunal cannot exercise its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from record itself.
Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion, is not an error apparent on the record, although it may be an error of judgment. It has further held that in the grab of an application for rectification it is not permissible to the parties to reopen and reargue the whole matter. Hon’ble Kerala High Court in the case of P.T. Manuel and Sons [2021 (3) TMI 435 - KERALA HIGH COURT] has held that the power of rectification is not akin to that of appeal or even a review. It has further held that merely because there is a wrong or erroneous order or a wrong appreciation of facts, the same cannot be grounds for rectification though they could be grounds for appeal. In view of the aforesaid facts and following the decisions cited hereinabove, we are of the view that since the Revenue has filed to point out any mistake apparent from record in the order as contemplated u/s 254(2) of the Act, we are not inclined to recall order - Misc. Application of the Revenue is dismissed.
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2021 (8) TMI 1084 - ITAT ALLAHABAD
Rectification of mistake - error in filing the correct column in the return of income with correct figures have resulted into a huge demand - appellate authorities power to admit fresh claim - HELD THAT:- It is the assessee who has claimed to have made alleged mistake while filing return of income and now the assessee is resiling from its own position, thus, burden cast on assessee is very heavy. We are also of the view that the various documents/evidences filed by assessee in support of its contentions require verification.
The claims of the assessee has been rejected by the CIT(A) only on the ground that returned income is accepted and secondly no revised return is filed. We have observed that Hon'ble Superior Courts have taken consistent view that appellate authorities have power to admit fresh claim, even if the same is not claimed through filing of revised return of income.
Keeping in view entire factual matrix of the case and in the interest of fair play and justice, we remit the matter back to the file of the CIT(A) for fresh determination of the issue and to pass detailed/speaking order. Needless to say that learned CIT(A) has powers which are co-terminus with the powers of Assessing Officer. The ld. CIT(A) shall give proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in accordance with law.
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2021 (8) TMI 1083 - ITAT AMRITSAR
Exemption u/s 11 - registration u/s 12AA - HELD THAT:- Under section 12A, the provisions of sections 11 and 12 shall not apply in relation to the income of any trust or institution unless various conditions are fulfilled. Section 2(15) defines charitable purpose and the same includes relief in education and advancement of any other object of general public utility. In case the utility is carried out in the nature of trade, commerce, business, the proviso provides that the same will not be a charitable purpose.
We are of the considered opinion, that the power of the Commissioner is to look into the objects of the Society and the genuineness of the same cannot be doubted when the basis is of non-supply of information. In such circumstances, it would be appropriate that the Commissioner undertakes the exercise afresh, on the basis of the application which has already been filed, keeping in view the material which can be produced by the assessee.
The impugned order is set aside with a direction to the file of the CIT(E) to decide the application, filed under section 12AA, afresh with the following directions Consider the veracity of evidence claimed to be submitted before the then CIT.
Verify the genuineness of the objectives of the assessee trust in the light of evidences prima facie relevant, for the year under consideration for the purpose of grant of registration u/s. 12AA of the Act. Assessee shall cooperate in the proceedings, before the CIT. All pleas available under the law shall remain so available to the assessee in the fresh proceedings before the Ld. CIT.
Appeal is treated allowed for statistical purposes in the terms indicated as above.
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2021 (8) TMI 1082 - ITAT MUMBAI
Deduction u/s 80GGA - Allegation of Bogus Donation - the name of the Trust appears at Serial No. 14 in the notification dated 11.08.2011 and the the Trust is eligible for accepting donation u/s 35AC - HELD THAT:- The assessee in support of donation made, has filed copy of Bank Statement and receipt issued by the Trust acknowledging the receipt of donation made by the assessee. The assessment for AY 2014-15 was re-opened in the case of assessee to disallow the benefit of deduction claimed by the assessee under section 80GGA of the Act in respect of donation made to Navjeevan Charitable Trust.
A perusal of the assessment order reveals that the AO has merely raised a suspicion that the possibility of Navjeevan Charitable Trust accepting donation and returning the amount back to the donors after charging some commission cannot be rulled out. No positive evidence is brought on record by the Revenue to substantiate that the donation money had infact travelled back to the assessee in the form of cash. The disallowance has been made merely on suspicion. See JADSTONE TRADING PVT. LTD. VERSUS ITO 10 (2) (1) MUMBAI. [2019 (6) TMI 1574 - ITAT MUMBAI] - Decided in favour of assessee.
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2021 (8) TMI 1081 - ITAT MUMBAI
Addition being interest on part amount receivable as corpus from developers - Addition on ground that the interest u/s 12.50% is due and since the assessee is following mercantile system of accounting, the said interest is chargeable to tax - HELD THAT:- CIT(A) has found that no interest was due during the impugned financial year. This is duly supported by ITAT order in assessee’s own case [2017 (2) TMI 1497 - ITAT MUMBAI] referred by learned CIT(A). Hence, we do not find any infirmity in the order of learned CIT(A) in this issue.
Deduction u/s.80P(2)(c) - HELD THAT:- Main reason for disallowing the claim here is by his mistaken invocation of section 80P(4) of the Act. This has been duly settled in The Mavilayi Service Cooperative Bank Ltd. [2021 (1) TMI 488 - SUPREME COURT] that in the case of Cooperative societies this section cannot be invoked as they cannot be held to be cooperative bank. When they have a lease from RBI to this effect. Examining the learned CIT(A)’s order on the conspectus of aforesaid decisions, we do not find any infirmity in the order of learned CIT(A). Hence, we uphold the same.
Disallowance of deduction u/s 80P(2)(d) made by the CPC Bangalore is beyond the scope of provisions of section 143(1) - Whether as per section 143(1)(a)(ii) of the Act an incorrect claim can be disallowed if such incorrect claim is apparent from any information in the return? - HELD THAT:- We do not find any infirmity in the order of learned CIT(A). We note that claim was due and proper. There was no reason that CPC would disallow the same. The date of filing of return being extended by CBDT, no adverse inference can be drawn that the assessee could not be eligible for deduction and claim which are allowable if return are filed within due date. The extension of due date makes the assessee eligible for all the claims, which are allowable when the return is filed within due date. Moreover, as rightly noted by learned CIT(A) in any case this was not something which could be denied under section 143(1) of the Act. Hence, we uphold the same.
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2021 (8) TMI 1080 - ITAT CHANDIGARH
Nature of expenses - professional expenses - revenue or capital expenditure - CIT-A treated expenses claimed by the assessee as revenue expenditure instead of capital expenditure treated by the AO - HELD THAT:- CIT(A) has decided the said issue in favour of the assessee by following the ratio laid down in the case of CIT vs. SRF Ltd. [2015 (7) TMI 1029 - DELHI HIGH COURT] and case of Reliance Footprint Ltd. [2013 (12) TMI 161 - ITAT MUMBAI] and case of DSM Sinochem Pharmaceuticals India (P) Ltd.[2015 (12) TMI 1827 - ITAT CHANDIGARH ]. Since, the Ld. CIT(A) has decided the issue in accordance with the law laid down by decided judgments no infirmity in the order passed by the Ld. CIT(A). - Decided against revenue.
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2021 (8) TMI 1079 - ITAT MUMBAI
Penalty u/s 271(1)(c) - disallowance to 12.5% of the alleged non-genuine purchases - HELD THAT:- Ultimately, the additions leading to the imposition of penalty were made on estimate basis - as evident from the assessment order, in response to the notice issued under section 133(6) of the Act, some of the selling dealers responded and furnished the details of sales made by them. Thus, the admitted factual position is, some of the dealers alleged to be non-genuine have confirmed the transactions with the assessee. Thus, from these facts, neither concealment of income nor furnishing of inaccurate particulars of income is proved. Therefore, in such scenario, no penalty under section 271(1)(c) of the Act could have been imposed.
Maintainability of appeal on monetary limits - It is the case of the revenue that the appeals are protected under paragraph 10(e) of CBDT Circular No. 2/2018 dated 11.07.2018 - a careful reading of the relevant clause of the circular makes it clear that it is only applicable to the additions made based on information received from external sources like law enforcement agencies in the category of CBI, DRI etc. Presently, we dealing with proceeding for imposition of penalty u/s 271(1)(c) of the Act which is independent from the assessment proceedings. Therefore, it cannot be said that the penalty imposed is based on information received from external sources as contemplated under paragraph 10(e) of the foretasted circular. That being the case, the present appeals are not maintainable due to low tax effect as well. In view of the aforesaid, we uphold the order of learned Commissioner (Appeals) while dismissing the grounds raised.
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2021 (8) TMI 1078 - BOMBAY HIGH COURT
Amount payable under the DTVSV Act - Interest u/s 244A on the refund due to the Petitioner - whether Petitioner has a permanent establishment in India under certain provisions of the India-Netherlands double taxation avoidance agreement to the Assessing Officer? -whether the Appeal pending before the ITAT is a departmental Appeal or an assessee Appeal? - HELD THAT:- As following our decision in Writ Petition[2021 (7) TMI 336 - BOMBAY HIGH COURT] we have no doubt in arriving at the conclusion that pending Appeal is a Revenue Appeal and the first proviso to Section 3 of the DTVSV Act would become applicable and, accordingly, the amount payable by Petitioner would be 50% of the disputed tax.
Whether an interest granted under Section 244A of the IT Act to Petitioner earlier can be recovered by the Respondents by adding the same to the amount of disputed tax otherwise payable by Petitioner under the DTVSV Act? - Once a declarant has filed a declaration to the Designated Authority in respect of the tax arrears, which declaration is in accordance with Section 4, then notwithstanding anything contained in the IT Act or any other law, the amount payable shall be as set out in the Table in Section 3. In the case of Petitioner, Section 3(a) read with the first proviso would be applicable which would be 50% of the amount of disputed tax. Disputed tax in accordance with the definition set forth above would mean the income tax including surcharge and cess, referred therein as the amount of tax payable by the Appellant, computed as contained in Clause (A) therein.
It is also undisputed fact that interest under Section 244A has been received by Petitioner as that is the amount of interest which was levied on the refund granted to Petitioner, pursuant to order giving effect to the order of CIT(A) pending the proceedings before the ITAT. It is also not in dispute that ordinarily if the Appeal before the ITAT is decided against Petitioner, the said amount already paid to Petitioner, would be recovered in the order giving effect to the order of the ITAT, as interest or as an amount is due from Petitioner to the Department.
Upon a query from the Court, as to how the Department would recover the interest paid under Section 244A, in the absence of the DTVSV Act, if the Tribunal order was decided against the assessee, it is being clarified on behalf of Revenue that such interest granted earlier under Section 244A of the IT Act would be recovered from the assessee by charging interest under Section 234D of the IT Act at the rate stated therein on the whole of the excess amount refunded and not separately, as the rate at which Section 234D interest would be levied is higher than the rate which is given to assessee under Section 244A
From a conjoint reading of Section 2(1)(j)(A), Section 2(1)(o)(i), Section 3, Section 5 and Section 6 of the DTVSV Act, it is clear that there is no provision in the DTVSV Act, which authorises recovery of interest paid earlier by the Department under Section 244A as disputed tax, there being no statutory mandate for the Designated Authority to recover interest as disputed tax in the manner sought to be done in this case.
Thus there is no provision in the DTVSV Act which authorises recovery of interest paid earlier by the Department under Section 244A of the IT Act by adding the same to the amount of disputed tax in the manner sought to be done, thereby making the addition to disputed tax in Form-3 bad in law.
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2021 (8) TMI 1065 - ITAT DELHI
MAT credit on the difference between gross tax liability as per normal provisions and MAT provisions as claimed by assessee in ITR instead of base tax as per normal income and book profit u/s 115JB - as per revenue explanation 2 to section 115JB was inserted to define the meaning of tax for the purpose of calculating book profit liable to tax u/s 115JB and it cannot be extended to section 115JAA or section 115JB of the Act - HELD THAT:- CIT(A) has allowed relief to the assessee and has held that while allowing the MAT credit, it is gross Income Tax including Surcharge and Education Cess which is required to be considered. -
This issue is covered by the decision of SREI Infrastructure Finance Ltd [2016 (8) TMI 967 - CALCUTTA HIGH COURT] thereby confirming the set off of MAT Credit u/s 115JAA brought forward from earlier years against tax on total income including surcharge and education cess instead of adjusting the same from tax on total income before searching surcharge and education cess. The Hon’ble Calcutta High Court relied upon the decision of the Hon’ble Apex Court in case of CIT Vs. Tulsyan Nec Ltd. [2010 (12) TMI 23 - SUPREME COURT]. Thus, there is no need to interfere with the findings of the CIT(A). Hence, the appeal of the Revenue is dismissed.
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2021 (8) TMI 1053 - ORISSA HIGH COURT
TDS Liability payment made by the LIC to its development officers? - Exempted Allowances u/s 10(14) - Salary - Order u/s 201 - ITO (TDS) held that in respect of 12 development officers of LIC there was a short deduction and non-deduction of the tax in the sum for the Financial Year 1999-2000 and that the said amount had to be paid by LIC to the Central Government - HELD THAT:- After the aforesaid amendment to Section 10 (14) of the Act, the legal position, as explained in the CBDT circulars issued thereafter, is that the expenditure reimbursed by LIC would qualify for deduction under Section 10 (14) of the Act. If the expenditure is incurred by the Development Officer, he cannot claim deduction u/s 10 (14) of the Act.
It appears that LIC devised a proforma for the development officer to fill up certifying the expenditure incurred by them for development of insurance business. A portion of the allowance thus granted was then treated as exempt under Section 10 (14) of the act. Way back on March 12th, 1997 the CBDT informed the Chairman LIC that such procedure was not in accordance with Section 10 (14) of the Act read with Rule 2 BB (i) of the IT Rules and that “unless an allowance is notified u/s 10 (14) (i) of the Act no portion of it can qualify for tax exemption.”
The Court finds no ground made out for interference with the impugned orders of the ITO and the Commissioner.
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2021 (8) TMI 1052 - DELHI HIGH COURT
Assessment order passed u/s 143(3) without giving Petitioner/assessee a meaningful opportunity of being heard - violation of priciples of Natural justice - HELD THAT:- This Court finds that the notices dated 10th February, 2020, 10th March, 2021 and 20th March, 2021 had been issued u/s 142(1) of the Act and not under Section 144B of the Act. Consequently, the statutory mandate as enshrined in Section 144B of the Act has not been complied with in the present instance.
This Court also takes judicial notice of the fact that between 19th April, 2021 and 27th April, 2021 there was a complete lockdown in the city of Delhi. Accordingly, this Court is of the view that Petitioner has not been given an adequate and meaningful opportunity to respond to the draft assessment order cum show cause notice dated 20th April, 2021 and there has been a violation of principles of natural justice.
Consequently, the impugned Assessment Order dated 27th April, 2021 passed under section 143(3) of the Act is set aside and the matter is remanded back to the Respondent for taking necessary steps in accordance with law. With the aforesaid directions, the present petition along with pending applications stands disposed of.
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2021 (8) TMI 1051 - DELHI HIGH COURT
Refund of amount adjustment towards pre-deposit in excess of 20% - recovery proceedings while appeal is pending - HELD THAT:- This Court finds that in the present matters no order has been passed by the AO under Section 245 of the Act for adjustments of refunds. Moreover, there is no order by the Assessing Officer giving any special/particular reason as to why any amount in excess of 20% of the outstanding demand should be recovered from the petitioner-assessee at this stage in accordance with paragraph 4(B) of the office memorandum dated 29th February, 2016.
Consequently, this Court is of the view that the respondents are entitled to seek pre-deposit of only 20% of the disputed demand during the pendency of the appeals in accordance with paragraph 4(A) of the office memorandum dated 29th February, 2016, as amended by the office memorandum dated 25th August, 2017.
Accordingly, the respondent no.1 is directed to refund the amount adjusted in excess of 20% of the disputed demand for the Assessment Years 2015-16 and 2016-2017 within four weeks.
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