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Income Tax - Case Laws
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2021 (12) TMI 1499 - ITAT INDORE
Exemption u/s 11 - lower authorities held that assessee’s activities are commercial in nature - Assessee is charging handsome registration and subscription fees for providing its services - HELD THAT:- The trust or education institute is running with a nominal fee to cover cost on account of its activities that cannot be held to be a commercial activity. Sometime trust or the other institution does not get complete donations either from public or from the government.
In that case, if those trusts or education institutes charging nominal amount of fee in order to carrying out its activities in a smoother way, this cannot be called a part of commercial activities. Therefore, as assessee is imparting education and training to students and public, its activities have not been doubted by the lower authorities. Therefore, in such circumstances, benefit of Section 11 of the Act cannot be denied. Assessee appeal allowed.
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2021 (12) TMI 1496 - BOMBAY HIGH COURT
Obligation to pass a draft assessment order u/s 144C (1) - merely procedural or inadvertent error or breach of a mandatory provision - whether curable defect? - HELD THAT:- Argument of Respondents that failure on the part of the AO to follow the procedure u/s 144C(1) is merely a procedural or inadvertent error cannot be accepted. The requirement under Section 144C(1) of the Act to first pass the draft assessment order and to provide a copy thereof to the assesee is mandatory requirement that gave substantive right to the assessee to object to any variation, that is prejudicial to the assessee.
Depriving petitioner of this valuable right to raise objection before DRP would be denial of substantive right to the assessee. As held in SHL (India) Private Limited (2021 (7) TMI 1208 - BOMBAY HIGH COURT] failure to follow the procedure under Section 144C(1) of the Act would be a jurisdictional error and not merely procedural error or a mere irregularity. Therefore, the Assessing Officer has assumed jurisdiction to straight away pass the final order without following the mandatory procedure prescribed u/s 144C.
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2021 (12) TMI 1494 - BOMBAY HIGH COURT
Breach of principles of natural justice - Assessment order passed without even considering the submissions in writing submitted and without granting a personal hearing - HELD THAT:- It is one of those blatant cases of breach of principles of natural justice and total non application of mind. In the assessment order, the AO is referring to a show cause notice dated 12th April 2021 by which the DAO proposed modification in returned income and petitioner's initial reply seeking an adjournment of the hearing but conveniently chooses to ignore the reply filed by petitioner on 23rd April 2021 showing cause as to why the modification in returned income should not be made.
We see no reason why we should wait for respondents to file any reply and prolong the agony of petitioner and also waste precious judicial time. If the AO had only considered the file properly and dealt with the reply dated 23rd April 2021, then the need for petitioner to approach this Court would not have arisen. Ignoring the reply and forcing petitioner to approach this Court is again adding to the docket of the already overburdened Court. Hence, it is fit case, in our view, to impose cost on the concerned officer, who shall pay a sum of Rs.5,000/- as donation from his / her personal account to P. M. Cares Fund.
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2021 (12) TMI 1492 - ITAT CHENNAI
Admission of additional grounds of appeal filed under Rule 11 of Income Tax (Appellate Tribunal) Rules, 1963 - legal issue of jurisdiction u/s 147 challenged - Deduction u/s 80IA - AO noticed that the assessee has claimed excess deduction by including income which would not qualify for deduction u/s 80IA - Revenue has challenged deletion of addition made towards foreign exchange fluctuation claimed by the assessee - HELD THAT:- Before us, by filing petition for admission of additional grounds of appeal filed under Rule 11 of Income Tax (Appellate Tribunal) Rules, 1963, assessee has submitted that the assessee is challenging the legal issue of jurisdiction under section 147 of the Act, since, against the original assessment order dated 26.12.2008, the assessee preferred an appeal and vide order dated 24.02.2012, the ld.CIT(A) has allowed deduction under section 80IA of the Act to the extent of ₹.14,11,72,786/- as against the claim of ₹.14,28,54,064/-, which was confirmed by the ITAT in an appeal filed by the Revenue in [2017 (1) TMI 1830 - ITAT CHENNAI] as well as the Hon’ble Jurisdictional High Court vide [2019 (4) TMI 861 - MADRAS HIGH COURT] on further appeal, thereby the issue of eligibility of 80IA relief attained finality.
As contended that no reason was stated by the AO while issuing notice under section 148 of the Act and thus, the reassessment proceedings is bad in law and prayed for suitable directions. The petition filed under Rule 11 of Income Tax (Appellate Tribunal) Rules, 1963 has been admitted. Since the assessee has not raised the legal issue before the ld. CIT(A), we set aside the appellate order and remit the matter back to the file of the ld. CIT(A) to decide the legal issue and thereafter the claim of deductions under section 80IA of the Act, if any, afresh in accordance with law after affording a meaningful opportunity of being heard to the assessee. Appeals filed by the assessee as well as Revenue are allowed for statistical purposes.
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2021 (12) TMI 1482 - BOMBAY HIGH COURT
Validity of Reopening of assessment - non consideration of all the submissions of petitioner as objections to the notice issued u/s 148 - HELD THAT:- As per petitioner if the Court could direct the AO to hear petitioner personally then petitioner could explain to him, before fresh order on objections is passed, and make all submissions before the concerned officer and the Court may then dispose the petition in the above terms.
Revenue leaves it to the Court but states that the Court should not make any observation on the merits of the matter. The request revenue is justified. Therefore, the order dated 20th November 2019 is quashed and set aside.
AO is directed to reconsider the submissions made by petitioner in its letter dated 9th April 2019 in response to the notice issued u/s 148 of the said Act, grant personal hearing to petitioner and thereafter, pass his order in accordance with law within six weeks from today. We clarify that we have not made any observations on the merits of the case.
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2021 (12) TMI 1481 - BOMBAY HIGH COURT
Reopening of assessment - claim made u/s 80IA was rejected for the reason that the conditions laid down by the said provision are not fulfilled - HELD THAT:- Revenue carried the matter in Appeal before this Court and this Court in [2011 (9) TMI 1251 - BOMBAY HIGH COURT], dismissed Revenue’s Appeal relying upon in [2011 (2) TMI 1625 - BOMBAY HIGH COURT]. Therefore, the entire foundation for the proposed re-opening which could, even if considered to be a tangible material, has crumbled. Decided in favour of assessee.
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2021 (12) TMI 1480 - BOMBAY HIGH COURT
Penalty u/s 271(1)(c) - true meaning of concealment of particulars of income and furnishing of inaccurate particulars of income under Section 271 - if, Assessing Officer has accepted the return of income as returned but later it is reassessed based on an order passed under Section 263 of the Act, can a penalty be imposed? - HELD THAT:- The court requested Mr. Madhur Agrawal as Amicus to assist the court. Ms Vissanji stated she will provide a copy of the Appeal Memo to Mr. Agrawal.
Liberty is given to appellant’s counsel to make a photocopy of the order when the substantial question of law was drawn.
The question mentioned above will also be considered as substantial question of law arising out of this Appeal and parties may address on the same on the next date. Stand over to 14th January 2022.
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2021 (12) TMI 1478 - GUJARAT HIGH COURT
Validity of Reopening of assessment - HELD THAT:- As Petitioner has chosen not to press this matter at this stage. We have chosen not to go into the merits of the matter. This disposal will not come in the way of the petitioner in pursuing other legal remedies.
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2021 (12) TMI 1477 - RAJASTHAN HIGH COURT
Preferring an appeal u/s 246A - as argued if the petitioner is relegated to appellate authority, there will be hindrance in petitioner’s way as the limitation for filing the appeal has already passed - HELD THAT:- Present writ petition is disposed of with the direction to the petitioner to prefer an appeal before the appellate authority on or before 15.01.2022.
In case, appeal is preferred by 15.01.2022, the appellate authority shall consider the same, in accordance with law, ignoring the delay as the petitioner was bonafidely pursuing the present writ petition against the assessment order dated 20.07.2021.
Needless to observe that since this Court has not adjudicated on merit of the case, the petitioner will be free to raise all permissible grounds, including the ground in relation to special audit, in accordance with law.
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2021 (12) TMI 1475 - CALCUTTA HIGH COURT
Applicability of Section 115JB on electricity company - assessee is engaged in the generation of power and has been established under the provisions of Damodar Valley Corporation Act, 1948 - scope of amendment brought in Section 115JB of the Act by Finance Act, 2012 effective from 01.04.2013 - HELD THAT:- All taxation is meant for the welfare of the people in a constitutional republic and, therefore, the enquiry as to the mischief sought to be remedied by the amendment becomes irrelevant and, therefore, the Court held that the fiction fixed under Section 115JB cannot be pressed into service against the appellant therein while making the assessment of the tax payable under the Income Tax Act. On this issue, it would be beneficial to refer to the decision of ING Vysya Bank Ltd. [2020 (1) TMI 1116 - KARNATAKA HIGH COURT] wherein held that provision of Section 115JB cannot be made applicable to insurance companies, banking companies or companies engaged in generation or supply of electricity.
Effect of the amendment brought about to Section 115JB by Finance Act, 2012 with effect from 1st April, 2013 and sought to impress upon us the effect of such amendment to sustain their contention - This very issue was considered in the case of CIT, LTU vs. Union Bank of India [2019 (5) TMI 355 - BOMBAY HIGH COURT] as held that the amendments to Section 115JB are neither declaratory nor classificatory but are substantive and significant legislative changes and can be applied only prospectively.
Further, the High Court of Kerala in Principal Commissioner of Income Tax vs. State Bank of India [2019 (10) TMI 638 - KERALA HIGH COURT] had considered the identical issue in respect of a banking company and following the decision of Union Bank of India [supra] had dismissed the appeal filed by the revenue. Appeal decided in favour of assessee.
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2021 (12) TMI 1474 - ITAT HYDERABAD
TP Adjustment - DRP directed TPO /A.O. to exclude eight out of thirteen comparable entities whereby reducing arm’s length price (ALP) adjustment - HELD THAT:- We note at the outset that this tribunal’s co-ordinate bench order in Assessment Year 2009-10 in assessee's case [2014 (11) TMI 129 - ITAT HYDERABAD] itself has already excluded M/s. Eclerx Services Ltd., M/s. Cosmic Global Limited and Infosys BPO on the ground that they provide KPO services, have different business model(s) since having huge sub-contracting company brand value, diversified activity and other functional dissimilarities; respectively. Revenue has admittedly not indicated any distinction for the relevant facts in these twin assessment years.
The outcome is not different qua the remaining comparables as well wherein we find that M/s.Informed Technologies Ltd. fails revenue filter of 75% applied by the TPO himself. M/s. Jeevan Scientific Technologies Ltd. has also been rejected on the very turnover filter as well as in light of huge fluctuating margin pinpointing abnormal trend. Same factual position prevails regarding M/s. Mastiff Tech P. Ltd. having bad debts influencing its profit margin thereby reducing them from 21.78% to 2.28% only.
We lastly note that M/s. TCS E-Serve Ltd. fails to satisfy the turnover filter which is also found to be catering mainly to M/s. Citi Group having diversified portfolio than assessee's IT Enabled Services segment. Suffice to say, the learned panel has taken due note of all applicable judicial precedents as well. We thus decline the Revenue’s instant sole substantive grievance as well as the main appeal.
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2021 (12) TMI 1472 - ITAT HYDERABAD
Undisclosed LTCG - entering into a joint development agreements - transfer of capital asset u/s 2(47) - assessee submitted he did not transfer the immoveable property as per the provisions of Section 2(47) r.w.s.53A of the T.P Act and had only entered into joint development agreement wherein she is supposed to receive a portion of constructed area in view of the land contributed by her - HELD THAT:- Assessee has only entered into a joint development agreement with the promoter of the project. As a result, the assessee has contributed her land for joint development, and by virtue of the agreement she is entitled to receive 32.30% of the total saleable constructed/developed area in the project. Hence, it is evident that during the relevant assessment year the assessee has contributed her immoveable property for the joint development of the property and eventually when her share in the developed property is sold, she will be benefited by gain or loss as the case may be unless the assessee opts to retain the developed property.
If the assessee opts for sale of her developed property, provisions of Section 45(2) of the Act may apply and Long-Term Capital Gain for the sale of the land as well as profit from the sale of the developed property would be computed in accordance with the provisions of Section 45(2) r.w.s.48 of the Act and under the head “Income from business” respectively. And if the assessee opts to retain her share in the developed property, then long term capital gain shall accrue to the assessee when the transfer of the immovable property pertaining to the share of land assigned to developer takes place.
Amount received by the assessee of Rs.7 crores is only an interest-free refundable security deposit for ensuring the project to be completed as per the terms of the agreement. Further, it is also obvious that the assessee has only permitted the developer to develop the project in her land. Therefore, it cannot be construed that the possession of the immoveable property of the assessee is vested with the joint developer as per the provisions of the Act.
Thus it is apparent that the assessee shall not be liable to be taxed for entering into a joint development agreement when neither the assessee have received any consideration nor handed over possession of the immovable property during the relevant assessment year. It is Ordered accordingly. Hence the appeal of Revenue is devoid of merits.
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2021 (12) TMI 1468 - CALCUTTA HIGH COURT
Revision u/s 264 after eight years - eligible reasons for delay - HELD THAT:- As Petitioner submits that due to mistake he had filed an appeal before the Tribunal against the assessment order in question and it appears from record that the said appeal was dismissed on 25th September, 2014 as it appears from Annexure P-5 to the writ petition and even if the explanation of the petitioner is accepted the time was consumed by him in the appeal in that case also from the order of the Tribunal it is after almost seven years in approaching the writ court and this inordinate delay itself is sufficient ground for refusal to entertain the writ petition.
In justification of delay of this seven years, petitioner wants to rely on Paragraphs 7 and 8 of this writ petition but we are not convinced with the same since the writ court is a court of equity and it is for those who are vigilant and diligent to their rights and not for those who sleep over their rights. The impugned order being passed by giving opportunity of hearing to the petitioner but he did not avail that opportunity and he asked further adjournment.
Considering these facts, this writ petition dismissed.
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2021 (12) TMI 1467 - ITAT BANGALORE
Nature of expenses - Product Registration Charges - Revenue or capital expenditure - mercantile method of accounting followed as in the business of manufacturing of pharmaceutical products - whether product registration expenses have been charged off in the accounts constitutes as an expenditure allowable u/s 37(1) and hence disallowance is ought to be deleted? - HELD THAT:- On perusal of ledger accounts revels that payments have been made to statutory bodies either for approval or as statutory maintenance in foreign nations. Assessee has also made payments being annual fees to the Medical agencies in foreign nations. All these are recurring in nature. These payments are inextricably linked to the business of the assessee.
In respect of Patent expenditure, it is submitted that assessee has to get the patent registered in various regions in order to safeguard its product from any infringement. Further nothing has been placed on record to establish that the patent expenditure has been incurred by assessee on a new product. One aspect cannot be ignored that assessee incurs these expenses every year.
Coming to the expensed incurred by assessee in respect of the drug called ‘Dolenio’, we note that it is sold by assessee in many countries. The expenses incurred by assessee towards Mutual recognition process variation is necessary based on any change in the packing of the drug like change in color etc., or shape of the drug, or even the change of supplier.
The expenses incurred by assessee in respect of Dolenio during the years under consideration towards Mutual recognition process variation, Patent and Trade mark and other registration expenses, are be considered as revenue expenditure, allowable under section 37(1) of the Act.
Annual fee/license fees paid the ledger account revels that these are recurring in nature, and hence cannot be treated to be one time payment. These are in respect of renewal of licence with the drug authorities in respective countries to continue to hold the licence to export and sell the products developed by assessee. Accordingly we do not find any infirmity in the observation of CIT(A) to treat the payments to be revenue expenditure allowable u/s 37(1)
Disallowance u/s 14A r.w.s. D(2) (ii) - Assessee suo moto disallowed u/r 8 D(2)(iii) - AR submitted that the nature of dividend, was from investment in Mutual Funds (MFs) and that the investment was made out of surplus funds and funds from other sources and that no part of the borrowed funds was utilised for making the investment in MFs - HELD HAT:- If there be interest-free funds available to an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be presumed that the investments were from the interest-free funds available. However this needs verification as on the date of investment. The cash flow statement would disclose as on the date of making investments, which had given rise to the exempted income, that the assessee had interest free funds available with it. In the interest of justice and equity, we deed it fit to remand the case to the Assessing Officer for fresh consideration. AO shall afford reasonable opportunity of being heard to the assessee. The assessee shall prove its case that it is having interest free funds for making investments, by furnishing cash flow state for the respective assessment years.
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2021 (12) TMI 1463 - ITAT GUWAHATI
Assessment u/s 153C - usurpation of jurisdiction u/s 153C by the AO without first satisfying the essential condition precedent in the fourth proviso to Section 153A read with Explanation 2 of the Act - assessee had specifically objected to the AO’s action of reopening the unabated assessment for AY 2011-12 u/s 153C of the Act and had requested the AO to give details of the purported ‘assets’ (undisclosed/unaccounted assets unearthed during search qua the assessee qua the AY 2011-12) - HELD THAT:- Perusal of the assessment order impugned before us, shows that that AO did not make any addition/s in respect of escaped/undisclosed asset in the relevant AY 2011-12. Neither was the investments held in shares by the assessee found to be unaccounted/undisclosed nor was its source of acquisition disputed or held to be unexplained by the AO. We therefore find ourselves in agreement with Shri Dudhwewala that, unless the AO made addition/s of Rs. 50 Lakhs or more in relation to escaped/undisclosed asset, he could not assume jurisdiction to make addition/s on other items (viz. credit entries in bank account etc.) The reason is simple, because in such a scenario, it bellies the claim of the AO in issuing notice u/s 153C of the Act, that he is in possession of the jurisdictional fact i.e. undisclosed asset valued Rs. 50 lakhs or more has escaped assessment, for which he seeks to re-assess the income of the assessee for the 7th to 10th AY.
When the AO fails to make any addition for the ‘undisclosed asset’, then it tantamounts to admission that there was no jurisdictional fact present before the AO in the first place, and the necessary corollary is that he has wrongly assumed jurisdiction u/s. 153C for AY 2011-12 and therefore AO cannot proceed further to make other items of additions/disallowances. In such a scenario, the AO has no other option but to drop the assessment proceedings.
For this conclusion of ours, we rely on the ratio laid down in the judgments of CIT Vs Jet Airways [2010 (4) TMI 431 - HIGH COURT OF BOMBAY] & Ranbaxy Laboratories Ltd. [2011 (6) TMI 4 - DELHI HIGH COURT] Though these judgments were rendered in the context of reopening u/s. 147 of the Act, however the ratio decidendi will apply in the present case, because, like Section 147/148 of the Act, the AO gets the authority to assess/reassess the income of a searched person or other person u/s 153A/153C for the extended assessment years (7th to 10th AYs) only if he has in his possession the jurisdictional fact, as discussed.
If the AO is found to have assumed jurisdiction erroneously on mistaken belief about the existence of jurisdictional fact or ultimately drops it (after making enquiries in the course of assessment) while framing the reassessment order; then the AO cannot legally proceed further with the assessment/reassessment and/or make any other items of additions/disallowances, for the reason that the jurisdictional fact is absent or not in existence at the first place when he usurped the jurisdiction. In the light of the aforesaid discussion, and in our considered opinion, this submission of Shri Dudhwewala is well founded and deserves to be accepted.
In view of the above and on perusal of the impugned re-assessment order, we note that the only addition made by the AO in AY 2011-12 was on account of unexplained cash credit represented by sale proceeds u/s 68 of the Act. As noted earlier, the additions on account of unexplained ‘cash credit’, could not have been made by the AO, unless he first made an addition of undisclosed ‘asset’ valued at Rs. 50 Lakhs or more.
So in this case, as there was no addition made by AO on account of undisclosed asset, we can safely infer that there was no jurisdictional fact in the AO’s hand or in his possession when he assumed jurisdiction u/s 153C for AY 2011-12 in the first place itself. As, the very usurpation of jurisdiction u/s. 153C of the Act is found to be bad in law for want of jurisdiction, the AO was precluded from making any other addition in the assessment for AY 2011-12. Hence, the AO’s action of making addition u/s 68 of the Act in the relevant AY 2011-12 is held to be unsustainable for want of jurisdiction and is therefore is quashed. The assessee thus succeeds on the first legal challenge raised in the cross objections. Hence, Ground No. 2 of the cross objections stands allowed.
Determining the abated/unabated assessment u/s 153C - date of search as ascertained - HELD THAT:- As we hold that in the case of unabated assessments of an assessee, no addition is permissible in the order u/s 153C of the Act unless it is based on any incriminating material found during the course of search.
The nature of the evidence or information gathered during the search should be of such nature that it should not merely raise doubt or suspicion, but should be of such nature which would prima facie indicate that real and true nature of transaction between the parties is something different from the one recorded in the books or documents maintained in ordinary course of business. In some instances, the information, document or evidence gathered in the course of search, may raise serious doubts or suspicion in relation to the transactions reflected in regular books or documents maintained in the ordinary course of business, but in such case the AO is not permitted to straightaway treat such material to be ‘incriminating’ in nature unless the AO thereafter brings on record further corroborative material or evidence to substantiate his suspicion and conclude that the transaction reflected in regular books or documents did not represent the true state of affairs. Until these conditions are satisfied, it cannot be held that every seized material or document is incriminating in nature, justifying the additions in unabated assessments.
We thus hold that the assertion of the AO in the 'Satisfaction Note' that having a bearing on the ‘total income’ of the assessee is perverse and erroneous. The alleged documents relied upon by the AO to usurp jurisdiction u/s 153C of the Act and justify the impugned addition did not constitute ‘incriminating material’ found in the course of search, from which any undisclosed/unexplained income could be inferred in the hands of the assessee. Hence, as there was no incriminating material against the assessee which was unearthed/seized during the search conducted on 22-12-2017 from the premises of Sagar Group, the satisfaction note prepared by the AO did not meet the condition precedent stipulated u/s. 153C of the Act, as the ‘document’ referred to, did not have any bearing on the total income of the assessee for AY 2011-12. In that view of the matter, the very assumption of the jurisdiction for AY 2011-12 is held to be bad in the eyes of law as held by the Hon'ble Supreme Court in the case of Sinhgad Technical Education Society [2017 (8) TMI 1298 - SUPREME COURT] and, accordingly the consequent order dated 3112-2019 is quashed.
We are of the view that based on the sole statement of Shri Agarwal, the AO could not have usurped the jurisdiction u/s 153C of the Act. Even otherwise, based on the discrepancy as discussed about ‘Annexure -1’ it is not safe to rely on it and above all, as discussed it did not contain anything which incriminated the assessee. Hence, such statement could not be the basis for drawing adverse inference against the assessee and therefore, no addition could have been made on the basis of such unreliable statement. We thus find that the contentions raised by the Ld. CIT DR are devoid of merits and is therefore rejected
AO had invalidly usurped jurisdiction u/s 153C of the Act as there was no incriminating material pertaining to the assessee seized in the course of search. Even the addition made in the unabated assessment for AY 2011-12 was unsustainable since it was not based on any incriminating material found in the course of search. In that view of the matter, the order dated 31-12-2019 passed by the AO is held to be a nullity and is accordingly quashed. Hence, Ground No. 1 of the cross objections also stands allowed.
CIT(A)’s action of holding the assessment order passed u/s 153C/143(3) to be ab initio void, for the AO’s failure to issue notice u/s 143(2) of the Act prior to completion of assessment - We find merit in the submission of the Ld. DR that issuance of notice under section 143(2) is not mandatory for finalization of assessment under section 153A/153C of the Act. We note that the Ld. CIT(A)’s had wrongly relied on the decisions of Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] & Laxman Das Khandelwal [2019 (8) TMI 660 - SUPREME COURT] which were distinguishable in as much as it were rendered in the context of assessments framed u/s 143(3)/158BC, where issuance of notice u/s 143(2) of the Act to assume jurisdiction over the assessee is mandatory. However, Section 153A/153C of the Act is a special provision and we find that there is no specific provision in the Act requiring the assessment to be made under section 153A/153C after issue of notice under section 143(2) of the Act.
As decided in Ashok Chaddha [2011 (7) TMI 252 - DELHI HIGH COURT]. There is no specific provision in the Act requiring the assessment made under s. 153A to be after issue of notice under s. 143(2) of the Act. Clause (b) of s. 158BC expressly provides that "the AO shall proceed to determine the undisclosed income of the block period in the manner laid down in s. 158BB and the provisions of s. 142, sub-ss (2) and (3) of s. 143, s. 144 and s. 145 shall, so far as may be, apply. This is not the position under s. 153A. The law laid down in Hotel Blue Moon, is thus not applicable to the facts of the present case.
Impugned order passed u/s 153C of the Act to be a nullity on the premise that it was passed consequent to the return of income filed by the assessee in response to earlier notice issued u/s 153A - We note that the Ld. DR has rightly pointed out that, the Ld. CIT(A) had erroneously observed that the AO had first issued notice u/s 153A of the Act for AY 2011-12 and thereafter without consigning/dropping the earlier notice, he had initiated fresh proceedings u/s 153C of the Act. Upon examination of the records, we note that, unlike for AYs 2012-13 to 2017-18, the AO for AY 2011-12 had issued only one notice u/s 153C of the Act dated 05-12-2019 and the assessee had also filed the return of income in response thereto, pursuant to which the assessment dated 31-12-2019 was framed u/s 153C/143(3) of the Act. We thus find merit in the Revenue’s case that this finding of the Ld. CIT(A) was erroneous. Before us, the Ld. AR was unable to controvert this fact.
Thus as the very usurpation of jurisdiction by the AO u/s 153C has been held to be bad in law and, even the seized documents referred by the AO for justifying the addition/s made u/s 68 of the Act, in the unabated assessment for the AY 2011-12, did not constitute ‘incriminating material’; the order passed u/s 153C/143(3) and the AO’s action of making addition u/s 68 of the Act therein, is held to be a nullity and is unsustainable for want of jurisdiction and is therefore is quashed.
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2021 (12) TMI 1461 - SUPREME COURT
Offence u/s 277 - evasion on account of misstatement or a wrong statement - non- payment of any tax before uploading of the returns - petitioners did not have money to make payment of the income tax - prosecution against all the directors of the company - reverse burden of proof - proof of willful evasion of tax or not? - HELD THAT:- We are not inclined to interfere with the impugned order and hence the special leave petition is dismissed. The dismissal of the special leave petition would not be construed as approval of the observations made in the impugned judgment - Section 202 of the Code of Criminal Procedure, 1973. Neither the dismissal nor the findings recorded in the impugned order reflect on other proceedings under the Income Tax Act, 1961.
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2021 (12) TMI 1460 - ITAT BANGALORE
Scrutiny assessment - non issuance of notice u/s 143(2) was ever issued by the Department - whether curable defect u/s 292BB? - HELD THAT:- Admittedly, no notice u/s. 143(2) was issued by the AO having jurisdiction over assessee either prior to the assessment proceedings or during the assessment proceedings. We place reliance on the decision of NITTUR VASANTH KUMAR MAHESH [2019 (5) TMI 1557 - KARNATAKA HIGH COURT] wherein Hon'ble Court took similar view. Hon'ble Court also held that provisions of section 292BB cannot cure such defect.
Based on the above discussions, we allow raised by the assessee and the order passed by the Assessing Officer u/s. 143(3) for year under consideration is held to be not legally sustainable. The assessment order dated 30.12.2016 is held to be Null in the eyes of law due to non-issuance of notice u/s. 143(2) by the Ld. AO who had jurisdiction over present assessee.
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2021 (12) TMI 1459 - ITAT GAUHATI
Assessment u/s 153A - Addition u/s 68 - Whether the AO had validly assumed jurisdiction to issue notice u/s 153A of the Act upon the assessee for AY 2011-12 in terms of fourth proviso to Section 153A of the Act read with Explanation 2 of the Act ? - HELD THAT:- Only upon valid assumption of jurisdiction, the AO ought to have proceeded against the assessee to assess the escaped asset of the assessee and thereafter other undisclosed income if any as per law. And when he does that, he first has to make addition in respect of the escaped asset [based on which AO initiated section 153A proceedings] and then only based upon the incriminating documents unearthed in the course of search, that he can make additions/disallowances in respect of other items of escaped income/credit/expense etc., if any (for unabated assessment years); in the event if no addition could be made by AO in respect of undisclosed asset [based on which AO initiated section 153A proceedings] then the AO has to drop the section 153A proceedings because, he has assumed jurisdiction on a wrong/non-existing undisclosed asset and can resume only u/s 153A only on satisfaction of new/fresh undisclosed asset/jurisdictional fact, which principle will discuss separately.
Pre-requisite condition to issuance of notice u/s 153A for the 7th – 10th AY - The extended jurisdiction to invoke/assess 7th – 10th AY is conferred on the AO by authority of law and the AO cannot confer to himself the jurisdiction in a casual manner by stating/substituting the specific jurisdictional fact to encompass all seized material. It is common knowledge that, seized material may contain both disclosed & undisclosed assets, liabilities, expenses & income. So, it is imperative that before issuance of notice u/s 153A [for the extended period], the AO sets out his objective satisfaction from the seized material, the details of the specified/undisclosed assets in his possession qua the assessee for AY 2011-12 valued Rs. 50 lakhs or more. If this essential requirement of law is not satisfied, the AO does not get the authority of law to invoke the jurisdiction u/s 153A for 7th to 10th AY.
For this, we rely upon the dictum of the Privy Council in Nazir Ahmed Vs. King Emperor [1936 (6) TMI 11 - PRIVY COUNCIL] that when a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all. As discussed the language of the fourth proviso to section 153A of the Act show that issuance of notice can be resorted to by the AO only after he is in possession of the jurisdictional fact, which is found to be absent in the present case. Therefore according to us, the AO only after having in his possession the jurisdictional fact could have assumed jurisdiction and issued notice u/s. 153A of the Act or else he could not have issued notice, as done in this case. For the reasons elaborately discussed by us in the foregoing, we thus hold that the notice u/s. 153A dated 11.09.2019 was issued by the AO without authority of law and without satisfying the essential jurisdictional fact, and hence the issuance of notice u/s. 153A is held to be bad in law.
Thus according to us, the pre-requisite condition for conferment of jurisdiction under section 153A for the assessment of AY’s falling from seventh (7th) to tenth (10th) assessment years preceding the searched assessment year being the jurisdictional fact in this case is absent and the AO without fulfilling this essential jurisdictional fact erroneously invoked jurisdiction u/s 153A of the Act for AY 2011-12, which is a serious flaw and a jurisdictional defect, that cannot be cured.
Additions on account of unexplained cash credit and that too share capital, which is in the nature of ‘liability’ could not have been made by AO, unless he first made an addition of undisclosed ‘asset’ valued at Rs. 50 Lakhs or more. So in this case, as there was no addition made by AO on account of undisclosed asset, we can safely infer that there was no jurisdictional fact in the AO’s hand or in his possession when he assumed jurisdiction u/s 153A for AY 2011-12 in the first place itself. As, the very usurpation of jurisdiction u/s. 153A of the Act is found to be bad in law for want of jurisdiction, the AO was precluded from making any other addition in the assessment for AY 2011-12. Hence, the AO’s action of making addition u/s 68 of the Act in the relevant AY 2011-12 is held to be unsustainable for want of jurisdiction and is therefore is quashed.
Whether in absence of any incriminating material found in the course of search at the premises of the assessee, the additions/disallowances made in the assessments of the assessee, which were unabated/ non-pending on the date of search, could be held to be sustainable on facts and in law? - We find ourselves in agreement with the above findings of the Ld. CIT(A) that this document was a share-holding pattern document prepared by way of secretarial compliance report, which as the assessee has shown, was filed along with the company’s annual return in Form MGT-7 on 28-11-2017 with the Registrar of Companies and was therefore available in the public domain (much prior to the date of search). It is found to contain the details of the name of shareholders, their amount and percentage of shareholdings.
In our considered view, this document was a regular business document having no incriminating content whatsoever. Nothing whatsoever has been brought on record by the Revenue to correlate or link as to how the contents of this statement led to unearthing of unexplained cash credit by the AO and therefore the aforesaid factual finding of the Ld. CIT(A) remains uncontroverted. Hence, we do not see any reason to interfere with the order of the Ld. CIT(A) on this aspect and hold that the seized document GCL-HD-1 did not constitute incriminating material or evidence.
For the reasons discussed we hold that the seized document GCL-HD-1 referred by the AO for justifying the addition/s made u/s 68 of the Act in the orders impugned before us, did not constitute ‘incriminating material’ and therefore no addition/s was legally permissible in the assessments framed u/s 153A for the AYs 2011-12 to 2015-16 for which the assessment did not abate, when the search was conducted on 22-12-2017. The assessee thus succeeds on Question (B) as well.
Whether the Joint Commissioner of Income-tax, Guwahati had validly granted approval u/s 153D of the Act and therefore whether the consequent order passed u/s 153A/143(3) was sustainable in law or not ? - As noted that the relevant copies of the letters addressed by the AO to the Jt.CIT and the letters of approval issued by the latter are not available on record, which are necessary to adjudicate this particular issue. Moreover, since we have already held the orders passed u/s 153A/143(3) of the Act and the additions made therein to be unsustainable in law for the reasons set out above, we are not inclined to return our findings with regard to this legal issue raised in the cross objections as the same has now become academic in nature.
Whether the assessee had discharged its onus of establishing the identity and creditworthiness of the share subscribers and substantiating genuineness of the transactions and therefore whether the additions made u/s 68 on account of share application monies received by the appellant was tenable on facts and in law ? - AO’s failure to personally examine the witness and his denial to allow the assessee opportunity to cross examine the Departmental witness on whose statements he was relying upon was a serious & fundamental flaw which resulted in the additions made u/s 68 of the Act to be a nullity as held by the Hon’ble Supreme Court in Andaman Timber [2015 (10) TMI 442 - SUPREME COURT]
Whether the AO had rightly computed interest u/s 234A - We find that the AO had wrongly taken the due date of filing of return in response to the notices issued under Section 153A of the Act dated 11.09.2019 to be the original due date u/s 139 of the Act i.e. 30.09.2011 for AY 2011-12, 30.09.2012 for AY 2012-13 and so on, rather than the day following the expiry of the time limit prescribed in notice u/s 153A of the Act, resulting in erroneous and excessive levy of interest u/s 234A of the Act. The AO is accordingly directed to re-compute the levy of interest u/s 234A of the Act in terms of sub-section (3) of Section 234A of the Act i.e. from the date on which the time limit for filing of return of income in response to notices u/s 153A of the Act dated 11.09.2019 had expired. This ground therefore stands allowed for statistical purposes.
Adjustment of seized cash by way of self-assessment tax in the hands of the assessee in AY 2017-18 - HELD THAT:- AR as brought to our notice that the assessee had filed a petition dated 28-02-2020 before the AO requesting him to adjust this seized cash against their tax liability for AY 2017-18. Having regard to the provisions of Section 132B(iii) of the Act, the AO is accordingly directed to grant the credit of seized cash by way of self-assessment tax in accordance with law.
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2021 (12) TMI 1456 - ITAT KOLKATA
Revision u/s 263 - validity of scrutiny assessment u/s 143(3) - AO while passing the assessment order u/s 143(3) did not enquire about “discrepancy in turnover shown in ITR and cash deposit in bank A/c” - HELD THAT:- As in the present case we note that the Ld. PCIT has alleged lack of enquiry on the part of the AO in respect of scrutiny of the CASS item “discrepancy in turnover shown in ITR and cash deposit in bank A/c”. We note that the assessee is running petrol pump business.
From the perusal of the assessment order, we note that the AO had called for the documents/records from the assessee and has made the specific finding of fact that pursuant to his notices, the assessee had furnished the same as well as the reconciliation in respect of the discrepancy in turnover shown in ITR and cash deposit in bank account.
AO has made a finding after calling for relevant documents to scrutinize the CASS issue that the assessee has been able to explain the discrepancy by filing the reconciliation. Since the AO has made a categorical finding on the issue on which the Ld. PCIT found fault with and when this fact has been brought to the notice of the PCIT during the revisional proceedings, PCIT after taking note that A.O has made enquiry on the issue, then if he is still not satisfied with the enquiry conducted by the AO on that issue, then according to us the Ld PCIT ought to have conducted enquiry himself and demonstrated how the AO erred in accepting the reconciliation/explanation given by the assessee while explaining/reconciling the discrepancy.
According to us, without doing such an exercise in the light of the AO’s finding that the assessee has explained/reconciled the discrepancy in turnover shown in ITR and cash deposit in bank a/c, the action of Ld PCIT to find fault with the AO’s action as erroneous for lack of enquiry cannot be countenenced. Therefore, we cannot agree with the Ld. PCIT that AO’s scrutiny assessment u/s 143(3) is erroneous for non-enquiry. Therefore, the Ld. PCIT erred in assuming jurisdiction u/s 263 - Appeal of the assessee is allowed.
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2021 (12) TMI 1455 - GUJARAT HIGH COURT
Validity of assessment u/s 144B - short period that had been given on service of the final notice and the Draft Assessment Order - whether the request for adjournment made has been responded as required under the law and whether the assessment framed can therefore be permitted to be sustained? - HELD THAT:- Once the statute provides that there is an opportunity to be availed to the assessee when there is a variation prejudicial to its interest is proposed, his request for adjournment as well as for the hearing also needs to be responded to. It is a completely unacceptable and unpalatable proposition that once a request come from the assessee, the respondent chooses not to respond to the same and go ahead with the framing of the assessment, that too when the time period was not expiring.
Even if the time period expires, it is for the respondent to workout a schedule in the manner as expected particularly when there is no human agency and when the assessee also has no one to turn to but to send a request through the e-portal.
Therefore, in the instant case when there was already a second surge of infection due to COVID-19 virus, the entire country was grappled with that second waive. If there is a categorical request that was made on account of such infection of the partner of the petitioner company and time was sought on 10.04.2021 when the time period for finalizing the assessment was getting over on 30.04.2021 as was known to the respondent from February, 2021, as extension had already come by virtue of the Circular, the framing of the assessment in clear defiance and in violation of this provision shall need to be interfered with.
Resultantly, we allow the present petition and quash and set aside the Assessment Order rendered u/s 143 (3) r.w.s. 143(3A) and 143(3B) which has been framed by the authority. The penalty proceedings and the demand notice are also quashed and set aside. AO shall be availing an opportunity to the petitioner including the opportunity of personal hearing, if requested for and decide the matter in accordance with law.
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