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Income Tax - Case Laws
Showing 221 to 240 of 7776 Records
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2021 (12) TMI 1067
Late payments towards EPF and ESI u/s 36(1)(va) - Payment before furnishing the return of income under section 139(1) - HELD THAT:- As relying on MOHANGARH ENGINEERS AND CONSTRUCTION COMPANY[2021 (9) TMI 1319 - ITAT JODHPUR] and M/S. STATE BANK OF BIKANER & JAIPUR AND JAIPUR VIDYUT VITARAN NIGAM LTD. [2014 (5) TMI 222 - RAJASTHAN HIGH COURT] the impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI & PF prior to filing of the return of income u/s 139(1) of the Act, in both the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted. - Decided in favour of assessee.
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2021 (12) TMI 1066
Estimation of income - the appellant is a entry provider and not making actual sales/purchase and earns nominal income by way of commission on issuing bills to parties @ 0.29% to 0.50% - HELD THAT:- As contention raised by the assessee that order passed by the AO in assessee’s own case in succeeding years i.e. AYs 2014-15 & 2015-16 vide order dated 28.12.2016 & 28.12.2017 respectively is applicable to the year under consideration by applying the rate of 0.5% of the total billing is not sustainable because in AYs 2014-15 & 2015-16 there was not even a whisper if assessee had ever entered into the business of providing accommodation entries to the dealers to help them to reduce their tax liabilities rather in those years it was simple case of dealing into wholesale business of trading in which Revenue itself had accepted 0.5% ratio on total billing to assessed income of the assessee.
We are of the considered view that on the basis of succeeding years’ orders having distinguishing facts, assessee’s income cannot be estimated by applying the same ratio i.e. 0.5% - CIT(A) has rightly thrashed the issue in the light of the facts and circumstances of the case and prevailing general practices in the identical trade. Finding no illegality or perversity in the impugned order passed by the ld. CIT (A), appeal filed by the assessee is hereby dismissed.
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2021 (12) TMI 1065
Revision u/s 263 by CIT - As per CIT AO has decided the matter in favour of the assessee without going deep into the issue regarding seized foreign currency and excess income over total expenditure - HELD THAT:- Every loss of revenue as a consequence of an order cannot be termed as prejudicial to the interests of the Revenue. In the case of ITO v. DG Housing Projects Ltd [2012 (3) TMI 227 - DELHI HIGH COURT]as held that revisional power under section 263 of the Act is normally exercised in the case of no enquiry and not in the case of inadequate enquiry. The Assessing Officer has passed the assessment order after making enquiries, Commissioner of Income-tax (Exemptions) has wrongly observed that the Assessing Officer has passed the order without making any inquiry on the issues discussed in the revisional order. The documents referred by the learned counsel do not suggest that the Assessing Officer has passed the assessment order without conducting any enquiry. Hence, in our considered view this was not the case where the Assessing Officer has passed the assessment without making enquiry for holding the same as erroneous.
In the case of. CIT v. Software Consultants [2012 (2) TMI 18 - DELHI HIGH COURT] the hon'ble Delhi High Court has held that where no addition is made on the grounds mentioned in the reasons recorded for reopening of the assessment, the assessment order cannot be said to be erroneous under section 263 of the Act In the present case the Assessing Officer has not made any addition on the ground mentioned in the reasons recorded Hence, the findings of the learned Commissioner of Income-tax (Exemptions) are not in consonance with the ratio laid down in the aforesaid case - we allow the appeal of the assessee and set aside the impugned order passed by the learned Commissioner of Income-tax (Exemptions) under section 263 of the Act. - Decided in favour of assessee.
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2021 (12) TMI 1045
Late remittance of employees’ contribution to PF and ESI - Payment prior to the due date of filing of the return of income u/s 139(1) - HELD THAT:- Tribunal in the case of M/s. Shakuntala Agarbathi Company Vs. DCIT [2021 (10) TMI 1196 - ITAT BANGALORE] by following the dictum laid down in the case of Essae Teraoka Pvt. Ltd [2014 (3) TMI 386 - KARNATAKA HIGH COURT] had held that the assessee would be entitled to deduction of employees’ contribution to PF and ESI provided that the payments were made prior to the due date of filing of the return of income u/s 139(1) - the amended provisions of section 43B as well as 36(1)(va) of the I.T.Act are not applicable for the assessment years under consideration
Employees’ contribution paid by the assessee before the due date of filing of return of income u/s 139(1) of the I.T.Act is an allowable deduction. Accordingly, we decide this issue in favour of the assessee and the disallowance made by the AO is deleted. - Decided in favour of assessee.
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2021 (12) TMI 1044
Delayed payment of employees contribution to PF and ESI paid after the due dates prescribed in the relevant Statutes but before the due date of filing of return under section 139(1) - HELD THAT:- As a similar issue relating to the disallowance on account of delayed payment of employees contribution towards PF and ESI was involved in the case of Lumino Industries Limited [2021 (11) TMI 926 - ITAT KOLKATA] and after considering the relevant provisions of the Income Tax Act as amended from time to time as well as the relevant judicial pronouncements on the issue, this Tribunal allow the claim of deduction in respect of employees contribution shares towards ESI, PF, by the assessee before the due date of filing of return u/s. 139(1) - Decided in favour of assessee.
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2021 (12) TMI 1043
Penalty u/s. 271(1)(c) - assessee had wrongly shown the rental income as 'business income' whereas it was to be offered for taxation as 'income from house property' - HELD THAT:- Admittedly the assessee has not concealed the aforesaid rental income received from two parties. The income was duly offered for taxation, however, as income from business and profession. The assessee in this respect has relied upon its objects wherein it has been mentioned that one of the object of the assessee was to provide space solutions to its clients. The assessee taking shelter under the aforesaid object, returned the income from the space rented out by it to two parties as business income. However, the income tax authorities and even appellate authorities did not agree with the aforesaid plea of the assessee and held that the assessee was primarily in the activity of providing IT Solutions and related activities and that renting of property was not the business activity of the assessee.
One fact which is apparent on the file is that the assessee had not concealed his income and under the bona fide belief, offered the same for taxation. However, the income tax authorities assessed it under different head. Even the pertinent fact on the file is that in the immediate preceding assessment year, the assessee had offered the same income as income from business and which was accepted by the AO under scrutiny assessment proceedings. Under the circumstances for the assessment year under consideration, the assessee can safely be said to be having bonafide belief for offering the same under the same head i.e. 'income from business or profession'. - We do not find that it is a fit case for levy of penalty u/s. 271(1)(c) - Decided in favour of assessee.
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2021 (12) TMI 1042
Deposit of employees’ contributions qua ESI & PF after the due date - deposit before the due date of filing of return of income u/s.139(1) - HELD THAT:- We may observe that the issue related to the employees’ contributions qua ESI & PF involved in the present appeal is squarely covered by the decision of coordinate bench of the Tribunal in VINKO AUTO INDUSTRIES LIMITED VERSUS DCIT, CPC, BANGALORE. [2021 (12) TMI 574 - ITAT AMRITSAR] wherein the Tribunal has deleted the disallowances made by the AO on account of delay in depositing the employees’ contribution towards ESI & PF as the same were deposited later than the prescribed time in the relevant acts but prior to the filling of the Return u/s.139(1).
Disallowances qua empoyeess’ contribution towards PF and ESI, sustained by the Ld. CIT(A) stands deleted. - Decided in favour of assessee.
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2021 (12) TMI 1035
Rejection of books of accounts - estimated net profit for the year under consideration at 7.6% of the total turnover - HELD THAT:- ITAT has observed that though there is no dispute regarding the fact that there are some technical mistakes in maintaining the books of accounts, however, AO should not loose sight of the gross profit rate shown by the assessee during the year under consideration as compared to the gross profit rate shown in the immediate proceeding year while coming to the conclusion of rejecting the books of accounts and estimating the net profit rate.
ITAT has found that during the year under consideration, the gross profit rate shown by the assessee is 29.29% as compared to the gross profit fate of 27.87% shown in the immediately preceding year. ITAT is of the opinion that the gross profit rate shown during the very year is much better than the gross profit of preceding year and, in such circumstances, there is justification for complete decline of contract expenditure claimed by the asssessee, which goes to constitute the gross profit rate. ITAT has further taken into consideration the profit and loss accounts of the assessee for comparison of expenses and found that the same are in order. After finding the gross profit shown by the assessee as reasonable, the ITAT has found that the assessee’s claim of interest expenditure and depreciation is required to be allowed.
In our opinion, the ITAT after thoroughly examining the material available on record has assessed the income of the assessee and according to us, the same is essentially a question of fact and appreciation of evidence. After going through the entire material available on record, the ITAT has come to the conclusion, which in our view is not liable to be interfered with. Learned counsel for the Revenue has failed to point out any perversity in the finding of fact recorded by the ITAT.
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2021 (12) TMI 1034
Legality and validity of the assessment order passed by the National e-Assessment Centre, Delhi u/s 143(3) r.w.s.143(3A) and 143(3B) - inadvertent mistake in entering the code number, which was sought to be rectified by the petitioner - HELD THAT:- Since the return of the petitioner was taken up for complete scrutiny assessment through the National e-Assessment Centre, Delhi, before completion of the assessment proceedings, the rectification petition filed by the petitioner under Section 154 of the Act ought to have been taken into consideration. Failure to do so has vitiated the impugned assessment order dated 17.03.2021.
That being the position, we set aside the assessment order dated 17.03.2021 and remand the matter back to respondent No.1 for passing a fresh assessment order after giving effect to the rectification petition filed by the petitioner on 17.01.2020. While doing so, respondent No.1 shall also take into consideration the response filed by the petitioner on 17.03.2021 in reply to the show cause notice and draft assessment order.
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2021 (12) TMI 1033
Validity of Settlement Commission order - Settlement Commission rejected the petitioner's settlement application, at the first stage itself - reason to reject the application is one, being the manner of earning the undisclosed income has not been satisfactorily explained - HELD THAT:- As decided in AJMERA HOUSING CORPORATION & ANR. ETC. VERSUS COMMISSIONER OF INCOME TAX [2010 (8) TMI 35 - SUPREME COURT] burden cast upon the declarant is only to make a full and true disclosure. To make a disclosure and to prove that fact are two different things.
In the nature of proceedings before the Settlement Commission, at the first stage, as laid down by the Supreme Court, it is only the factum of disclosure that is to be ascertained. In the present case, there is no denial of the fact that such a disclosure had been made by the petitioner. All that remains to be examined is whether the same was true and full in the eyes of the Settlement Commission.
To test whether the disclosure made was true and full, the Settlement Commission was only obligated to record a satisfaction. Again, a satisfaction is different and distinct from a concrete finding of fact or law. The decision of the Supreme Court only uses the word 'satisfaction' and not finding.
The satisfaction to be recorded is only an expression of a tentative opinion to entertain an application or to allow it to be processed further. Such a satisfaction does not and it could not determine either the rights of the parties to any extent or limit the options of the Settlement Commission to reach a different conclusion i.e. to reject the application either in part or in entirety, at a later stage.
Unless the application filed is found to be wholly bogus or unfounded on facts or law, there may remain less reason to reject such applications outrightly. In the facts of the present case, the petitioner had supported his claim and the Settlement Commission had not reached a conclusion that the disclosure made was not full or true inasmuch as the quantification was not in dispute at that stage. The truthfulness of the disclosure made may be said to have been not believed by the Settlement Commission inasmuch as there are observations disbelieving the manner of acquiring the declared income. In that regard, the petitioner had supported the disclosures with material in the shape of income tax returns, bank statements and another documents pertaining to the business entity M/s SIB International with respect to disclosure of undeclared income of ₹ 1 crore 25 lakhs. It had also brought on record the will deed, the affidavit of the attesting witness and also the invoices of sale and purchase of jewellery etc. in support of the disclosure arising from the jewellery business. These materials have not been considered at all by the Settlement Commission while recording a satisfaction in the negative, to reject the application filed by the petitioner.
We find no reason to endorse such an approach adopted by the Settlement Commission inasmuch as at that stage of the proceedings, there was no material to discard such evidence relied upon by the petitioner. The Settlement Commission had no basis to overlook the evidence produced by the petitioner. It would be one thing if the Settlement Commission after considering the same had recorded any conclusion disbelieving the same for cogent reasons. That having not been done, the order of the Settlement Commission can neither be described as reasoned nor it can be said to be based upon consideration of material on record. In fact, to that extent, it suffers from a non application of mind.
Disclosure of income of cash observations made by the Settlement Commission are self contradicted. In the first place, the application could not be thrown out at the threshold on the reasoning that the petitioner had not made any disclosure of such income before filing an application before the Settlement Commission. In fact, if the petitioner had disclosed such income in any earlier proceeding it may have been a ground to record such negative satisfaction to disallow the application to proceed because the petitioner had already disclosed such income in any proceeding under the Act. Here, according to the Settlement Commission, the petitioner did not disclose the income either during search proceedings or during the investigation carried out after the search or in response to the notice issued under Section 153 (A) of the Act. To that extent, the reasoning of the Settlement Commission is clearly erroneous in law.
As to the further reasoning offered by the Settlement Commission that the petitioner had not explained the manner of acquiring the income (cash and jewellery), the Settlement Commission has again failed to take into consideration the effect of the Memorandum of Agreement and the further claim of the petitioner that the signatories to that agreement (who had contributed ₹ 10.5 crores to set up a new business) had disowned that amount, subsequent to that search. Prima-facie, there is merit in the submissions advanced by learned Senior Counsel for the petitioner that by virtue of Section 132 (4A), Section 56 (2) (vii) and Section 292 (C), the presumption in law arose as a consequence of the action/inaction of the third party in not claiming the cash seized at the petitioner’s hands as may be treated as her income. Without drawing any final conclusion to that, we find that the said aspect has not been examined and has been completely overlooked by the Settlement Commission.
Settlement Commission appears to have remained in some doubt about the aspect of the matter inasmuch as its observation on the issue are hypothetical and plural. It has thus tried to weigh between two hypothetical possibilities of the money belonging to the third party and, the money belonging to the petitioner.
The approach taken by the Settlement Commission cannot be endorsed or appreciated. It is expected from the Settlement Commission to form clear opinion on facts, even at the stage of admission. Accordingly, the order passed by the Income Tax Settlement Commission, Additional Bench-II, New Delhi is hereby set aside.
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2021 (12) TMI 1032
Revision u/s 263 - speculative transaction or not - majority of trades undertaken through day jobbing in which sale and purchase of scrips on same day are matched without taking the delivery of the scrips - one of the reasons for selecting the case for scrutiny was large value sale of share which were settled otherwise than by actual delivery or transfer of STT - HELD THAT:- If the amount of ₹ 93,23,384/- is treated as speculation loss then business loss of ₹ 26,58,196/- will get set off against the income from house property of ₹ 20,52,542/-, against income from other sources of ₹ 5,40,403/- and against short term capital gain of ₹ 65,251/-. This will result in balance short term capital gain of ₹ 3,84,32,308/- to be set off against carry forward loss under the same head 'short term capital gain' against available carry forward short term capital gain of ₹ 4,41,05,508/-.
There is no impact of any revenue loss in this year nor in the subsequent year. Similar is the fact in A.Y. 2016-17 wherein if ₹ 2,92,861/- is treated as speculation loss instead of business loss, taxable income will remain the same of ₹ 59,70,000/-. This fact has not been denied by the ld. Pr. CIT or ld. CIT DR. Thus, if there is no loss of revenue in this year or in subsequent year nor will it impact the taxable income, then the assessment order cannot be held to be prejudicial to the interest of revenue and accordingly, in view of the principle laid down by Hon'ble Apex Court in the case of Malabar Industrial Co. Ltd.[2000 (2) TMI 10 - SUPREME COURT]the assessment order cannot be set aside.
Otherwise also, it is purely a case of change of opinion for the reason that similar nature of transaction of day trading of shares and F & O has been held to be business income/business loss in all the earlier years wherein assessment has been completed u/s. 143(3) of the Act. Thus, if rule of consistency is applicable on the same facts and circumstances in these years, then merely changing the head of income from business to speculation, then it cannot be held that the assessment order is erroneous and prejudicial to the interest of revenue. More so, here in this case, section 263 has been done only on the basis of audit objection which was only for the purpose of verification and which has already been examined by the AO during the course of assessment proceedings. Accordingly, the impugned orders u/s. 263 are set aside and assessment orders passed u/s. 143(3) of the Act are restored. - Decided in favour of assessee.
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2021 (12) TMI 1031
Delayed payment of employees contribution to PF and ESI - Amount paid after the due dates prescribed in the relevant Statutes but before the due date of filing of return under section 139(1) - HELD THAT:- As the issue involved in the present appeals as well as the material facts relevant thereto are similar to the case of Lumino Industries Limited [2021 (11) TMI 926 - ITAT KOLKATA] we respectfully follow the decision rendered by the Tribunal in the said case and delete the disallowances made by the Assessing Officer and confirmed by the ld. CIT(Appeals) in the appeals on account of delayed payment of employees contribution towards PF and ESI. - Decided in favour of assessee.
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2021 (12) TMI 1030
Delayed payment of employees contribution to PF and ESI - Amount paid after the due dates prescribed in the relevant Statutes but before the due date of filing of return under section 139(1) - HELD THAT:- As the issue involved in the present appeals as well as the material facts relevant thereto are similar to the case of Lumino Industries Limited [2021 (11) TMI 926 - ITAT KOLKATA] we respectfully follow the decision rendered by the Tribunal in the said case and delete the disallowances made by the Assessing Officer and confirmed by the ld. CIT(Appeals) in the appeals on account of delayed payment of employees contribution towards PF and ESI. - Decided in favour of assessee.
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2021 (12) TMI 1029
Demand u/s 201 (I) - AO treated the assessee as an assessee in default for non-deduction of tax u/s 201 - Form Nos.15G/15H not filled in properly - Assessee submitted that once the appellant bank has obtained the declarations forms from the depositors. it has no option but not to deduct the tax at source. The appellant bank has no legal obligation to deduct tax at source on the payments made to depositors - HELD THAT:- As decided in own case [2016 (5) TMI 1566 - ITAT HYDERABAD] once the assessee obtained Form 15I from the sub-contractors whose contents are not disputed or whose genuineness is not doubted, then, the assessee is not liable to deduct tax from the payment made to sub-contractor. Once, assessee is not liable to deduct tax disallowance u/s 40(a)(ia) cannot be made. The assessee’s breach of the requirement to furnish details to the income tax authority in the prescribed form within the prescribed time may attract other consequences but cannot result in a section 40(a)(ia) disallowances. Hence, addition made on this count is deleted. - Decided in favour of assessee.
The facts and findings recorded therein, has substance over the order passed by the ITO(TDS) u/s 201(1) & 201(1A) of the Act. Considering the observations of the Tribunal in the assessee’s own case as quoted supra, we allow the grounds raised by the assessee on this issue.
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2021 (12) TMI 1028
Late payments towards EPF and ESI under section 36(1)(va) - payment before furnishing the return of income under section 139(1) - HELD THAT:- Since the facts involved in the present case are identical to the facts involved in the case of Mohangarh Engineers and Construction Company and in the case of Bikaner Ceramics Private Limited, Bikaner [2021 (9) TMI 1319 - ITAT JODHPUR] the impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI & PF prior to filing of the return of income u/s 139(1) of the Act, in both the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted - Decided in favour of assessee.
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2021 (12) TMI 1027
Addition u/s 68 - unsecured loan obtained by the assessee from three directors - addition on the ground that the assessee failed to substantiate with evidences to his satisfaction regarding creditworthiness of the three directors and the genuineness of the transactions - CIT(A) sustained the addition as the assessee did not appear before her to substantiate the creditworthiness of the directors and the genuineness of the transactions - as assessee submitted that adequate opportunity was not granted by the learned CIT(A) and given an opportunity, the assessee is in a position to substantiate with evidences to the satisfaction of the learned CIT(A) regarding the creditworthiness of the Directors and the genuineness of the transactions -
HELD THAT:- Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore this issue to the file of the learned CIT(A) with a direction to grant one final opportunity to the assessee to substantiate its case and decide the issue as per fact and law - Appeal filed by the assessee is allowed for statistical purposes
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2021 (12) TMI 998
Reopening of assessment u/s 147 - increase of authorised share capital - HELD THAT:- By a letter dated 5th October 2015 the AO had called upon petitioner to produce the evidence in support of increase of authorised share capital, produce the evidence of share allotment and name and address of the parties from whom share premium was received, among other things. Petitioner by its letter dated 23rd December 2015 provided the details of share premium received including name of the party from whom it was received. After considering the same, the assessment order has been passed on 10th February 2016.
Therefore, it is not permissible for an Assessing Officer to reopen the assessment based on the very same material with a view to take another view without consideration of material on record one view is conclusively taken by the Assessing Officer. It is also not permissible to reopen purely on change of opinion. A general statement that the escapement of income is by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment is not enough. The Assessing Officer should indicate what was the material fact that was not truly and fully disclosed to him.
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2021 (12) TMI 997
Reopening of assessment u/s 147 - Eligibility of reasons to believe - HELD THAT:- All material facts had been disclosed by petitioner in the course of the regular assessment proceedings and the reasons recorded for initiation of reassessment too give reference only to the details already submitted by petitioner in the course of the original assessment proceedings and nothing more. It is a well settled judicial principle that the true test of income chargeable to tax escaping assessment is whether there exists fresh “tangible material” on the basis of which an appropriate conclusion can be reached.
In the absence of such fresh material, the reassessment proceedings would be invalid. This Court has held that reassessment based on a reconsideration of material already available on record at the time of the original assessment proceedings tantamounts to a change of opinion and would be invalid.
Since the relevant facts, which were already on record at the time of the original assessment proceedings, also form the basis for the initiation of the subject reassessment proceedings, it is amply clear that there was no fresh material that could have come to the notice of respondent no.1 to warrant reopening of assessment. Information received from DDIT (Inv.) regarding petitioner indulging in illegitimate activity of booking bogus profit/loss on scrip of M/s. Divine Multimedia (India) Ltd. would not by itself constitute any fresh material for reopening assessment. Information received from DDIT (Inv.) has already been examined and inquired into by respondent no.1 in the original assessment proceedings where after submitting various details with regard to details of investments, details of short term capital gains and long term capital gains the same had been satisfactorily explained and accepted by respondent no.1.
The notice issued under Section 148 is issued without jurisdiction and requires to be set aside. - Decided in favour of assessee.
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2021 (12) TMI 996
Assessment u/s 153A/153C - jurisdictional benchmark of “belong to” under Section 153C - Whether Tribunal has failed to appreciate that seized material indicated that certain portion of the transaction was conducted out of book? - HELD THAT:- This Court finds that the very same document seized from the residence of Mr.Lalit Modi, had been considered by the learned predecessor Division Bench in the case of Principal Commissioner of Income Tax (Central -2) v. Vinita Chaurasia [2017 (5) TMI 992 - DELHI HIGH COURT]. After considering the same, the learned predecessor Division Bench had concluded that the Assessing Officer appears to have proceeded purely on conjecture as regards what the document states without noticing the internal contradiction and inconsistencies.
Since the learned predecessor Division Bench has, on merits, found that there was no error committed by the Tribunal in deleting the addition made by the Assessing Officer on the basis of the same seized material/ document, this Court is of the view that in the present facts of the case, no substantial question of law arises for consideration
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2021 (12) TMI 995
Certificate u/s 197 - Deduction of TDS are low rate or NIL rate - India Switzerland DTAA read with the protocol and Most Favoured Nation (“MFN”) clause - application of the Petitioner u/s 197 had been disposed of prescribing a rate of 10% on the dividends distributed by Cotecna Inspection India Private Limited (“CIIPL”) to the Petitioner as opposed to the applicable rate of 5% under the India-Switzerland Double Taxation Avoidance Agreement (“DTAA”) read with the MFN clause and the Amending Protocol to the DTAA - HELD THAT:- The issues raised in the present writ petition are no longer res integra, as they are fully covered by the judgments of this Court in Concentrix Services Netherlands B.V. [2021 (4) TMI 1051 - DELHI HIGH COURT] as well as in Nestle SA [2021 (4) TMI 1267 - DELHI HIGH COURT]. In Concentrix Services Netherlands B.V. (Supra) it has been held that no separate notification is required insofar as the applicability of the protocol is concerned and the same forms an integral part of the Convention.
It is well settled law that the Department cannot refuse to follow binding jurisdictional decision merely on the basis that the Department proposes to file an appeal. The Supreme Court in UOI v. Kamlakshi Finance Corpn Ltd. [1991 (9) TMI 72 - SUPREME COURT] has held that order of higher appellate authorities should be followed ‘unreservedly’ and mere fact that decision is not acceptable to the Revenue cannot be a ground for not following the decision of higher authority.
The impugned order and certificate are set aside and the respondent is directed to issue a certificate under Section 197 of the Act indicating therein that the rate of tax, on dividend, as applicable qua the Petitioner is 5% in India-Switzerland DTAA as held in Nestle SA (Supra) which was also under India-Switzerland DTAA.
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