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Income Tax - Case Laws
Showing 441 to 460 of 7776 Records
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2021 (12) TMI 605
Interest u/s 244A of the Act on the advance tax payment - HELD THAT:- Under Section 237 of the Act, if any person satisfies the Assessing Officer that the amount of tax paid by him or on his behalf or treated as paid by him or on his behalf for any assessment year exceeds the amount with which he is properly chargeable under this Act for that year, he shall be entitled to a refund of the excess. Section 244A provides that where the refund of any amount becomes due to the assessee under this Act, he shall, subject to the provisions of this Section, be entitled to receive, in addition to the said amount, simple interest thereon calculated in the manner provided in the Sub Section (1) of Section 244 of the Act. Section 244A(2) provides that in the event the proceeding resulting in refund has been delayed for reasons attributable to the assessee, the period of delay was attributable shall be excluded from the period for which the interest is payable.
In this case, the proceeding resulting in the refund cannot be stated to be delayed for reasons attributable to petitioner. In any event, there is no finding that there was delay in the proceeding resulting in the refund and that delay was attributable to petitioner. It is true that petitioner submitted original advance tax challan for ₹ 40,00,000/- on 15th February 2002 after filing the return of income and not with the return of income filed on 31st October 2001, but petitioner has received intimation accepting the returned loss and granting refund on 26th January 2003 and the assessment order itself came to be passed on 30th March 2004. Therefore, the benefit of advance tax has already been allowed to the assessee, i.e., petitioner. In any event, there is no finding either by the Assessing Officer or respondent no.1 that there was delay and how petitioner was responsible for that delay. We have to also note that no reply has been filed to this petition.
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2021 (12) TMI 604
Validity of reopening of assessment u/s 148 - Mandation of recording speaking order - HELD THAT:- All the stages in GKN Driveshafts [2002 (11) TMI 7 - SUPREME COURT] principle except the last stage of the assessing officer passing a speaking order have been completed. In the instant case there is no disputation or disagreement that the assessing officer has not passed a speaking order on the objections of the writ petitioner / assessee ie., objections to the reasons for reopening. It is therefore now imperative that the GKN Driveshafts principle is complied with. On this short point, the matter is now sent back to the assessing officer viz., the first respondent to make a speaking order qua the writ petitioner's objections to the reasons for reopening. This shall be done by the first respondent assessing officer within three [3] weeks from today ie., on or before 30.12.2021.
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2021 (12) TMI 603
Reopening of assessment u/s 147 - Period of limitation - scope of procedure prescribed under Section 148A - according to the petitioners notice is barred by limitation and that the respondent before issuing the notice under Section 148 of the Act has not followed the mandatory procedure prescribed under Section 148A of the Act as prescribed by the Finance Act, 2021 and applicable w.e.f. 01.04.2021 before issuance of notice under Section 148 - HELD THAT:- The issue involved in the present writ petitions is squarely covered by the decision of the Allahabad High Court in the matter of Ashok Kumar [2021 (10) TMI 517 - ALLAHABAD HIGH COURT]which in my view is a correct view and has been taken after considering the judgment passed by the Single Bench of Chhatisgarh High Court in the matter of Palak Khatuja [2021 (9) TMI 199 - CHHATTISGARH HIGH COURT] which has been relied upon by respondents’ counsel and therefore the present petitions deserve to succeed.
Accordingly, the writ petitions are allowed. The reassessment notice issued to the petitioners under Section 148 of the Income Tax Act is quashed.
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2021 (12) TMI 602
Exemption u/s 11 - Charitable activity u/s 2(15) - assessee receives fee by way of commission from the Government for purpose of construction of building for Government - HELD THAT:- The assessee must satisfy the conditions stipulated in the definition. The assessee tries to bring its case within the ambit of 4th limb of section 2(15) of the Act and attempts to wriggle out from the effect of proviso which deals with services in relation to trade, commerce or business. The contention, in our considered view, is completely untenable.
The assessee receives amount from the Government, executes construction work for the benefit of the Government through contractors. The assessee receives fee by way of commission from the Government. The purpose of construction of building for Government cannot be accepted as an activity coming within the meaning of advancement of any other object of general public utility. In our view the reason being the construction activity by itself does not advance any other object of general public utility.
The general public utility from such construction is derived as fact with the facilities constructed by the assessee are put to utility. The activity undertaken by the assessee on one hand and on another hand with the ultimate purpose or user of buildings constructed by the Government shall not be mistaken with one another. The assessee is interpreting proviso by excluding one of the important limbs, viz. involves the carrying on of any activity in the nature of trade, commerce or business. The decision of the authorities are independently considered and by taking note of CBDT Circular and above reasoning, we are of the view that the substantial question raised could be answered in favour of the revenue and against the assessee.
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2021 (12) TMI 601
Minimum Alternate Tax (MAT) - Applicability of section 115JB on electricity company - Applicability of section 43B in respect of the electricity duty collected - HELD THAT:- Questions of law raised in the appeals are covered by the judgment of this Court reported in Kerala State Electricity Board V. Deputy Commissioner of Income Tax [2010 (11) TMI 127 - KERALA HIGH COURT]. - Decided in favour of assessee.
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2021 (12) TMI 600
Delayed employees contribution to PF and Employee State Insurance u/s 36(1)(va) r.w.s. 2(24)(x) - Contribution deposited beyond the due date prescribed under relevant Act and deposited within due date by filing the return on u/s 139(1) - HELD THAT:- We find no merit in the argument of the ld.DR since the explanation as provided in Finance Act 2021 prescribes that the amendment in both sec.36(va) as well as 43B by inserting corresponding explanation that although impugned PF comes in the form of provision and the same is applicable from 1/4/2021 onwards only.
In the present case we are concerned with the asst. year 2017-18 and the amended provision could not be applied retrospectively as it is only applicable w.e.f 1/4/2021. Being so no disallowance could be made by the AO in respect of PF/ESI paid within the due date of filing return of income. Though, it was beyond the date mentioned in the respective Act. This view of ours is supported by various judgment relied on by the ld.AR. Accordingly the appeal of the assessee is allowed.
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2021 (12) TMI 599
Unexplained cash deposits in two bank accounts - Legal tender money in demonetization of currency - AO culled out, the deposits that was made of bank notes that were declared as not legal tender owing to demonetization of currency - HELD THAT:- Both AO and CIT(A) accepted the fact that the cash receipts are nothing but sale proceeds in the business of the assessee. Addition has been made only on the basis that after demonetization, the demonetized notes could not have been accepted as valid tender. Since the sale proceeds for which cash was received from the customers was already admitted as income and if the cash deposits are added under section 68 of the Act that will amount to double taxation once as sales and again as unexplained cash credit which is against the principles of taxation.
Assessee was having only one source of income from trading in beedi, tea power and pan masala and therefore provisions of section 115BBE of the Act will have no application so as to treat the income of the assessee as income from other sources.
As in the case of CIT Vs. Associated Transport Pvt. Ltd. [1994 (1) TMI 18 - CALCUTTA HIGH COURT] on identical facts took the view that when cash sales are admitted and income from sales are declared as income, wherein the Hon'ble Tribunal found that the assessee had sufficient cash in hand in the books of account of the assessee, that there was no reason to treat the cash deposits as income from undisclosed sources.
When cash receipts represent the sales which the assessee has offered for taxation and when trading account shows sufficient stock to effect the sales and when no defects are pointed out in the books of account, it was held that when Assessee already admitted the sales as revenue receipt, there is no case for making the addition u/s 68 or tax the same u/s 115BBE - See M/S HIRAPANNA JEWELLERS AND (VICE-VERSA) [2021 (5) TMI 447 - ITAT VISAKHAPATNAM] - thus the addition made is not sustainable and the same is directed to be deleted. Appeal of the assessee is allowed.
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2021 (12) TMI 598
Disallowance of Employees contribution of PF & ESI u/s 36(1)(va) remitting the dues beyond the due date prescribed under the respective Statutes - HELD THAT:- We notice that an identical issue has been examined by the co-ordinate bench in the case of Shri Gopalakrishna Aswini Kumar [2021 (10) TMI 952 - ITAT BANGALORE] wherein the co-ordinate bench has expressed the view that the amendment made to sec.36(1)(va) of the Act will have prospective application and hence the decision rendered in the case of M/s Essae Teraoka (P.) Ltd [2014 (3) TMI 386 - KARNATAKA HIGH COURT].
Thus we hold that the additions made in both the years are liable to be deleted. Accordingly, we set aside the orders passed by Ld CIT(A) in both the years under consideration and direct the AO to delete the impugned additions in both the years - Decided in favour of assessee.
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2021 (12) TMI 597
Disallowance of depreciation claimed by the assessee u/s 32 on the fixed assets acquired/purchased during the year - asset put to use or not? - one of the main contention raised by the assessee was that nowhere in show-cause notice or queries, AO has asked, whether the assessee has started its business or not - HELD THAT:- From bare perusal of the assessment order, it is seen that ld. AO put a query to the assessee on 18.03.2016 to file the details of fixed assets and why the depreciation should not be denied. In response, the assessee has submitted the details as well as purchased bills as noted by the AO - in the show-cause notice dated 18.03.2016 which has been noted by the ld. CIT (A) that, in the entire show-cause notice, nowhere there was any specific query whether the assets were put to use during the year.
Production was carried out by utilizing raw material and finished & semi-finished stocks at the year end. Not only that, the goods produced had also been sold and revenue from the operation has also been shown at ₹ 6,80,056/-. This is not only mentioned in the audited financial accounts, which were there before the AO, but also from the statutory record of RG-1 register, copy of excise return and copy of VAT Return. Once a new factory has been set up with new plant & machinery which was used for production during the year and depreciation has been claimed on such plant & machinery, then same cannot be denied on the ground that the plant & machinery of the new assets purchased during the year were not put to use. The aforesaid finding of the ld. CIT (A) is not only based on appreciation of facts but also in accordance with law and hence said finding is affirmed. - now it is a well trite law even if assets are ready to use, which here in this case was actually put to use, then also depreciation cannot be denied.- Decided in favour of assessee.
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2021 (12) TMI 596
Additions in respect of employees contribution towards ESI/PF - Addition not made within the prescribed due date U/s 36(1)(va) of the Act and since these amount were not disallowed in the return of income filed by the assessee, the variance between the tax audit report and ITR has been duly flagged by the CPC in the computerized processing and disallowance u/s 143(1)(a)(iv) on the basis of fact furnished by the assessee was made which clearly fails within ambit of prima facie adjustment to be carried out u/s 143(1)(a)(iv) - HELD THAT:-Employees’ contribution to ESI and PF collected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) .
In the instant case, the impugned assessment year is assessment year 2018-19 and therefore, the said amended provisions cannot be applied in the instant case.
The addition by way of adjustment while processing the return of income u/s 143(1) so made by the CPC towards the deposit of the employees’s contribution towards ESI and PF paid before the due date of filing of return of income u/s 139(1) of the Act is hereby directed to be deleted. - Decided in favour of assessee.
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2021 (12) TMI 595
Reopening of assessment u/s 147 - Addition u/s 68 - assessee not explaining the source of the credits appearing in his bank account of HSBC Switzerland - status of assessee being non-resident Indian - limited application in the case of a non-resident - receipts taxable in India - whether the provisions u/s 68 and 69 of the Act do not distinguish between the residential status of an assessee? - CIT-A deleted additions by holding that once the assessee took his stand that he a non-resident, he can have foreign asset and foreign accounts which is not required declared before the Income Tax Authority - whether it can be said that the credits appearing the HSBC bank accounts in question lead to the situation where the amount is includible in the income of the assessee, a non resident Indian, within the provisions of section 5(2) of the Act? - HELD THAT:- A bare reading of provisions of section 5(2) of the Act makes it clear that that in case of a non-resident assessee, the total income that is liable to be taxed shall comprise of income, which is received or deemed to be received by or on behalf of such person or the same accrues or arises or is deemed to accrue or arise in India to such person. No such evidence to prove the fact that the remittance made by the assessee in his NRE Account or the credit allegedly appearing in HSBC has any source from income in India or routed from any business connection in India.
We find that the CIT(A) clearly held that there is no material or evidence to say that the assessee was having any business connection in India so as to justify an inference that any income thereof was received or deemed to have been received or accrued or deemed to have accrued in India. Further on perusal of the Grounds of appeal raised by the revenue before us, we find that none of the findings recorded by the CIT(A) have been assailed on the basis of any material or evidence rather based on assumption. Therefore, we do not find any merit in the grounds of appeal raised by the revenue. Hence, we do not find any infirmity, illegality or perversity in the order passed by ld CIT(A), which we affirm.
No merit in all the grounds of appeal raised by the revenue, resultantly all the grounds of appeal raised by the revenue are dismissed.
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2021 (12) TMI 594
Revision u/s 263 by CIT - assessee claimed deduction under section 54B against the Long Term Capital Gains (LTCG) earned thereon, on purchase of another agriculture land at Ved Karada, Surat - HELD THAT:- We have seen the copy of photographs which shows that vacant portion of the land is in cultivation form. The copies of same photographs are available in the assessment record, which were taken at the instance of inspector. No unusual things are seen in these photographs, which may suggest that the said land is used for other than agriculture purpose. We have also seen the copy of the sale deed dated 30.03.2015, executed by assessee in favour of the purchaser, wherein the nature of land is clearly mentioned as “agriculture land”.
Further in the land record in Form-7/12, the nature of land is also mentioned as agriculture. The Sub-Registrar at the time of registration of sale deed has accepted the nature of land as agriculture. And form the other evidence placed before us, the assessee has shown that the land in question was used for agriculture purpose.
Considering the aforesaid evidence, wherein the assessee has clearly demonstrated that the land under question was being used for agriculture purpose, therefore, we are of the view that the assessing officer has taken a reasonable and plausible view, which cannot be branded as erroneous. Since, the assessing officer has accepted the explanation of assessee, which was coupled with evidence; the assessing officer may not have thought to pass detailed order on the issue examined by her. In our view, once the contention of the assessee on a particular issue is accepted by assessing officer, the order is not appealable order and no appeal would be filed, against such accepted position as an assessee will not feel aggrieved with it, it is not necessary to give reasons of acceptance of such pleas.
So far as the observation of ld PCIT that the assessing officer did nothing to sort out the enquiry to verify the assertion of the assessee and there was failure on the part of Assessing Officer to bring on record the even correct facts or non-conduct of enquiry verification of facts, is concerned, we find that the assessing officer made requisite investigation before allowing relief to the assessee. The investigation conducted and the view adopted by the assessing officer in the present case, if not accepted by the Ld. PCIT, in nothing but change of opinion. It is settled position in law that no revision of assessment order is permissible on mere change of opinion.
On the basis of material before the assessing officer, she took reasonable, plausible and legally sustainable view, which cannot be branded as erroneous. There is no doubt that while accepting the claim in the assessment, there may be some loss of revenue, tax can be levied only with the authority of law, and every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the revenue unless the view adopted by assessing permissible in law. Once the assessing officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the assessing officer is unsustainable in law. Hence, the grounds of appeal raised by the assessee are allowed.
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2021 (12) TMI 593
Disallowance of credit for TDS - addition confirmed by CIT while processing the return of income by CPC under section 143(1) of the Act and thereafter passing the order under section 154 - HELD THAT:- While passing the order under section 154 of the Act, the CPC has denied the TDS credit for an amount of ₹ 1,54,213/- but no reason is assigned for non granting the credit of the said amount.
CIT(A) though accepted this fact that the CPC has not given any reason for not allowing the credit of the said amount and accordingly directed the CPC to allow the total TDS credit ₹ 11,06,643/- instead of ₹ 9,52,430/- allowed in the rectification order passed under section 154
CIT(A) has directed the assessee to provide the information for the purpose of implementing the directions issued to the CPC. Thus, it is manifest from the impugned order that the CIT(A), instead of getting relevant details and facts verified by calling a remand report from the Assessing Officer, has directed the CPC to consider the issue and allow the claim.
Since the assessee has claimed that the relevant details were filed in the proceedings under section 154 of the Act as well as before the CIT(A) therefore, in the interest of justice, we set aside this issue to the record of the Assessing Officer to verify the relevant details and correctness of the claim of the assessee regarding the TDS credit. The Assessing Officer has to properly verify the details of TDS as reflected in Form 26AS and then allow the TDS credit to the assessee after giving an opportunity of hearing to the assessee - Appeal is allowed for statistical purposes.
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2021 (12) TMI 592
Revision by PCIT u/s 263 - As per CIT assessment framed u/s 143(3) is erroneous and prejudicial to the interest of the revenue as the AO has not examined the issue of sale of flat at a price lower than stamp value - HELD THAT:- The date of purchase is the date when the allotment letter was issued to the assessee and not the date of registered agreement. The case of the assessee is squarely covered by the decision of the coordinate bench in the case of Naina Saraf [2021 (9) TMI 766 - ITAT JAIPUR] wherein held we are not in agreement with the view taken by the ld. Pr.CIT holding the applicability of S. 56(2)(vii)(b)(ii) in the facts and circumstances of the case and therefore we hold that the assessment order, subjected to revision u/s 263, is not erroneous and prejudicial to the interest of the revenue. Therefore, considering the totality of facts and circumstances of the case, the impugned order passed u/s 263 of the Act by the ld. Pr.CIT, is therefore, quashed.
Hence revisionary jurisdiction has not been validly exercised. Hence we quash the order passed u/s 263 of the Act by ld. PCIT and restore the order of AO. The appeal of the assessee is allowed.
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2021 (12) TMI 591
Addition on account of short term capital gain - Incomplete sale - flat was leased property of Mumbai Port Trust - whether there was no transfer of flat during the year? - HELD THAT:- The flat was leased property of Mumbai Port Trust and approval of the Mumbai Port Trust was required to be obtained for handing over the possession .We also note that the assessee has received only ₹ 25,00,000/- and the balance consideration was still outstanding - assessee was to hand over the possession to the buyer only upon full and final payment of sales consideration and after obtaining NOC from Mumbai Port Trust.
Possession has not been handed over as certain conditionalities are to be fulfilled like payment of balance consideration and obtaining of NOC - Mumbai Port Trust has been applied for issuing the NOC but still the same is awaited - sale is certainly not complete and it is absolute sale but a conditional sale which would be complete after satisfaction of the above two conditions. Neither AO nor ld CIT(A) have brought on record any substantive evidence to the contrary. So we are not in agreement with the conclusion of the ld CIT(A) that sale is complete. Sale of flat would only be completed after fulfilment of remaining conditions - we are inclined to set aside the order of ld CIT(A) on this issue and direct the AO delete the addition of short term capital gain. - Decided in favour of assessee.
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2021 (12) TMI 590
Revision u/s 263 by CIT - Allowability of provision for pension and provision for leave encashment - HELD THAT:- Pr. CIT came through the audit objections raised by the statutory auditors of the company in which statutory auditors have flagged the expenditure claimed by the assessee on provisions of contribution to pension and provision of leave encashment. It is fact on record that the Assessing Officer has asked for several information through notice u/s 142(1) specifically on provision for pensions, the assessee has filed relevant information which was available on the published financial statement and assessee has specifically submitted a note on provision for pension explaining the necessity of creating the provisions based on the actuarial report. This has necessitated due to the fact that the assessee has moved from the existing LIC 94-96 mortality table to adopt IALM 2006-08 mortality table because of which the contribution to approved superannuation was short to the extent of ₹ 1391.25 crores.
As per case of GLAXO SMITHKLINE PHARMACEUTICALS, MUMBAI [2011 (1) TMI 1530 - ITAT MUMBAI] we noticed that even in the given case there was a shortage of contribution to the fund based on the actuarial valuation report and even assessee has contributed to the above fund based on the above said report. Therefore, the expenditure claimed by the assessee is allowable under Income Tax Act u/s 37 of the Act. Hence, we are in agreement with the submissions of the Ld. AR on this aspect.
Provision for leave encashment - Assessee has claimed an amount on account of provision for leave encashment. Based on the fact on record, we noticed that the assessee has not made the payment during this year and rightly statutory auditor has flagged this expenditure which is not allowable u/s 43B. AR heavily relied on the case of Glaxo Smithkline Pharmaceuticals (supra) and we observed that the Hon’ble Supreme Court upheld the constitutional validity of section 43B(1) of the Act and wherein it has accepted the decision of Hon’ble Calcutta High Court. Therefore, as far as this issue is concerned which is against the assessee and the Assessing Officer should have verified the issue in detail. We do not see any submission or any inquiry made by the Assessing Officer on this aspect. Therefore, in our considered view, to the extent of this issue which is against the assessee, we uphold the observations of the Ld. Pr. CIT in this regard and the order passed by the Pr. CIT u/s 263 is stayed to this expenditure. Appeal filed by the assessee is partly allowed.
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2021 (12) TMI 589
Validity of reopening of assessment u/s 147 - Assessment of capital gain upon entering joint development agreement - HELD THAT:- It is an admitted fact that the Joint Development Agreement was not furnished by the assessee along with return of income and the details of JDA came to the notice of the AO only subsequently - JDA would constitute fresh material. It is a settled proposition of law that the entries made in the books of account will not be deciding factor in so far as Income tax Act is concerned. Hence we are of the view that there was sufficient reason for the AO to entertain the belief that there was escapement of income. Accordingly, we uphold the validity of reopening of assessment.
Transfer of capital asset u/s 2(47) - We notice that the assessee has entered into a joint development agreement on 29.12.2005 and on the very same day a supplementary joint development agreement was also entered. Both the agreements have been registered with the registration authorities - the developer is granted irrevocable permission and license to enter the scheduled property for the purpose of construction of residential apartments as per the plan to be obtained. It is specifically been mentioned that the license so granted shall not be considered as possession delivered in part performance of the contract u/s 53(sic. 53A) of Transfer of property Act nor any property right shall be deemed in favour of developer.
The transferee should have taken possession in part performance of the contract and has done same act in furtherance of the contract. In the instant case, development agreement clearly specified on the possession of the property was not given and what was given is only license to enter the property. The question whether granting of such kind of license would amount to “Possession” within the meaning of sec.53A of Transfer of Property Act r.w.s sec. 2(47)(v) of Income tax Act was examined by the Bangalore SMC bench of Tribunal in the case of Smt. Lakshmi Swarupa [2018 (10) TMI 1345 - ITAT BANGALORE]
In the instant case also, we have noticed that the assessee has given permissive possession and not “legal possession” as contemplated within the meaning of sec.53A of the Transfer of Property Act. Hence we hold that the provisions of sec.53A of the Transfer of Property Act are not applicable to the impugned Joint Development Agreement. In this view of the matter, the provisions of sec.2(47)(v) of the Act are also not applicable. Hence the tax authorities are not justified in invoking the above said provision and consequently, the capital gains assessed in the hands of the assessee is liable to be deleted - direct the AO to delete the assessment of short term capital gains.
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2021 (12) TMI 588
Levying MAT u/s 115JB - 100% reduction of the profit u/s. 80IB(10) - while computing the book profit u/s. 115JB appellant had reduced it from book profit and claimed that it was not liable for tax under, this Section - As per AO assessee is not entitled to reduce the book profit by claiming such deduction - HELD THAT:- For claiming deduction u/s. 80IB(10) from book profit, no case has been made out that this adjustment to book profit under 115JB falls under any of the adjustments mandated in section 115JB Explanation (1). Only reason given by the assessee for the purpose is that sub-section (5) mentions, save as otherwise provided in this section, all other provisions of this act shall apply to every assessee being a company, mentioned in this section. A bare reading of the above clearly shows that sub-section (5) clearly provides that ‘save as otherwise provided’ in this section all the provisions of the I.T. Act will be applicable to the computation governed by section 115JB. Hence, this clearly means that what has been provided in this section shall prevail and thereafter all other provisions shall apply. Hence, explanation (1) to section 115JB clearly provides what can be adjusted from book profit. Hence, sub-section (5) duly saves the prescription of Explanation (1). Hence, this explanation (5) does not help the assessee to claim that section 80IB deduction permissible under the I.T. Act should be adjusted from book profit
As decided in APOLLO TYRES LTD. VERSUS COMMISSIONER OF INCOME TAX [2002 (5) TMI 5 - SUPREME COURT] clearly shows that there is no bar on making adjustments to book profit as per law. The above pleading is absolutely not sustainable. Hon'ble Apex Court has clearly provided that except as provided in section 115J no adjustment to the book profit can be done. The said decision of Hon'ble Apex Court is clearly applicable as noted by us hereinabove. Insertion of sub-section (5) in section 115JB in no way dilutes prescription of Explanation (1) to section 115JB which clearly specifies adjustment being made in the book profit. We are conscious that other High Courts have taken different view in this context. However, Hon'ble Bombay High Court in several decisions has followed the aforesaid decision of Hon'ble Apex Court and held that profit shown in book profit cannot be tinkered or adjusted in any manner otherwise than the manner which is mandated in the said section of the Act. Even in cases where the assessee has taken capital receipt directly to the capital reserve without routing it through profit and loss account, Hon'ble Bombay High Court has held that the Assessing Officer cannot tinker the book profit duly disclosed in the profit and loss account on the touchstone of Hon'ble Supreme Court decision in the case of Apollo Tyres Ltd. (supra).
No tinkering to the book profit is permitted except as provided in Explanation (1) of Section 115JB of the Act. Various ITAT and other High Court decisions quoted by learned counsel cannot take precedence over Hon'ble Bombay High Court decision referred hereinabove. It is settled law that the decisions of other High Courts have persuasive value but decision of Hon'ble Jurisdictional High Court is binding upon all subordinate courts and Tribunals. In accordance with the discussion and precedent hereinabove we do not find any infirmity in the orders of authorities below. Hence, we uphold the same.
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2021 (12) TMI 587
Addition being late remittance of employees’ contribution to PF and ESI under the respective Acts - as stated that the assessee had paid the employees’ contribution to PF and ESI prior to the due date of filing of the return u/s 139(1) - HELD THAT:- Bangalore Bench of the Tribunal in the case of M/s. Shakuntala Agarbathi Company [2021 (10) TMI 1196 - ITAT BANGALORE] by following the dictum laid down by the Hon’ble jurisdictional High Court 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) of the I.T.Act.
Thus the amended provisions of section 43B as well as 36(1)(va) of the I.T.Act are not applicable for the assessment year under consideration. As further hold by following the binding judgment in the case of Essae Teraoka Pvt. Ltd Vs. DCIT (supra), the 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 - Decided in favour of assessee.
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2021 (12) TMI 586
Bogus LTCG - bogus exempted income - Amount of capital gain treated as unexplained cash credit u/s 68 - HELD THAT:- The income generated by the assessee cannot be held bogus only one the basis of the modus operandi, generalisation, and preponderance of human probabilities. In order to hold income earned by the assessee as bogus, specific evidence has to be brought on record by the Revenue to prove that the assessee was involved in the collusion with the entry operator/ stock brokers for such an arrangements. In absence of such finding, it is not justifiable to link the fact or the finding unearthed in case of some third party or parties with the transactions carried out by the assessee. Further the case laws relied by the AO are with regard to the test of human probabilities which may be of greater impact but the same cannot used blindly without disposing off the evidence forwarded by the assessee. In simple words, there were not brought any evidence from independent enquiry to corroborate the allegation.
As relying on Smt. Krishna Devi [2021 (1) TMI 1008 - DELHI HIGH COURT] we hold that in absence of any specific finding against the assessee in the investigation wing report, the assessee cannot be held to be guilty or linked to the wrong acts of the persons investigated as far as long term capital gain earned on sale of share of M/s AGIL is concern.
Capital gain earned by the assessee cannot held bogus merely on the basis of some report finding unearthed in case of third party/parties unless cogent material brought against particular assessee are brought on record. Therefore, we set aside the finding of the learned CIT(A) and direct the AO to delete the addition made by him. Hence the grounds of assessee appeal is allowed.
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9911796707
