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Income Tax - Case Laws
Showing 221 to 240 of 9304 Records
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2022 (12) TMI 1129
Revision u/s 263 by CIT - excess deduction claimed under Section 35 (2AB) - As stated that the assessee has suo moto added back amount while computing the taxable income for the relevant assessment year - HELD THAT:- As furnished the relevant extracts of the financial statement for the financial year 2015-2016 highlighting all the relevant details. Further the location wise break up of those items of expenses as reflected in the profit and loss account were also placed before the learned tribunal and it was explained that the items set out in the Column (B)(C)(D)(E) in the above table formed part of the depreciation on scientific research assets; assets written off and profit and loss on sales of asset debited in the profit and loss account. Thus, it was explained that the sum of Rs. 1,34,45,166/- was added back in the computation of income.
This aspect of the matter has been analyzed by the learned tribunal and it has found that the said sum was added back in the computation of income and therefore there was absolutely no basis for the PCIT to invoke his power u/s 263 - records clearly show that the assessing officer had issued notices to the assessee on the very same issue considered their reply thereafter pointing out certain discrepancies issued show cause notice for which reply was submitted by the assessee and after a detailed enquiry the assessment has been completed. Thus, it is not a case of lack of enquiry or lack of proper enquiry.
PCIT does not in as many words states that there was lack of enquiry or lack of proper enquiry and all that is said is that the assessing officer did not verify these aspects which is factually incorrect. Therefore, it is not a case where the PCIT could have invoked his jurisdiction under Section 263 of the Act.
Advertisement expenditure for employment charged by “LINKED IN” and bank charges therein -Advertisement expenses in June 2014 were admitted as liability and crystallized for payment in the year under consideration owing to the fact that the “LINKED IN” being non-resident had furnished the necessary documents in the such as TRC under Section 90(4) of the Act read with Rule 21 AB of the Rules and no PE certificate etc. only in the assessment year under consideration.
Tribunal noted it is not the case where these expenses were charged as deduction in the preceding year more importantly, the tribunal noted that there is no revenue implication and no prejudice is caused to the revenue since the tax rate applicable to the assessee during the assessment year 2015-2016 to which invoices relates and the tax rates applicable for the assessment year 2016-2017 in which the invoices were accounted and paid were the same.
Hon’ble Supreme Court in Malabar Industrial Company Limited [2000 (2) TMI 10 - SUPREME COURT] held that every loss of revenue cannot be treated as prejudicial to the interest of revenue and if the assessing officer has adopted one of the courses permissible under law or where two views are possible and the assessing officer has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order, unless the view taken by the assessing officer is unsustainable under law.
Also on facts the tribunal found that the PCIT has not carried out any enquiry on his own and merely set aside the assessment order and sent the file back to the assessing officer to re-examine the issues which is contrary to the law as laid down in several decisions and the tribunal rightly noted the decision in DG Housing Projects Limited [2012 (3) TMI 227 - DELHI HIGH COURT] - No substantial questions of law.
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2022 (12) TMI 1128
Amount shown in 26AS aken into consideration even when the TDS certificate indicates a higher receipt - HELD THAT:- We find that the Tribunal had done an elaborate fact finding exercise and has pointed out as to how the assessing officer erroneously relied upon only the figures mentioned in the TDS certificate and ignored Form No.26AS - HELD
Simply because there is difference in the claim of assessee in respect of TDS credit and the corresponding income, the AO has made the addition which cannot be accepted when the Form 26AS gives a different picture, which also assessee has no control; and 26AS Forms are generated by the Income-tax department and the figures come close to the assessee’s contention. Therefore, opinion the assessee’s income should be taken as Rs.3,95,030/-, which is shown in Form 26AS (downloaded from the Income tax Department website) and she should be given TDS credit of only Rs.39,569/- as reflected in the Form 26AS. We direct the AO to adopt these figures and compute the taxable income of assessee accordingly as per law.
In this appeal, the above factual position is not being disputed by the revenue. Thus, we are of the clear view that there is no substantial question of law much less substantial question of law arising in this appeal for consideration.
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2022 (12) TMI 1127
Revision u/s 263 - According to PCIT, the AO failed to verify the excess allowance of bad debts - HELD THAT:- As this being limited scrutiny assessment framed by the AO for the purpose of verification of large business loss incurred in the money lending. We noted that the AO has gone into the details and noted in the assessment order - We also noted that all the debtors have confirmed while summoned and statements were taken from them. Some of them could not attend in person but confirmed in writing.
We noted that the AO has formed an opinion and now PCIT, should not have invoked the powers of revision u/s.263 of the Act on the same issue which is examined by the AO in detail. Hence, we find that the revision order passed by PCIT is bad in law and hence, the same is quashed. Appeal filed by the assessee is allowed.
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2022 (12) TMI 1126
Addition under the head ‘income from capital gains’ - business of real estate development had converted her land into stock-in-trade in terms of provisions of Sec.45(2) - assessee has formed a layout as per approved plan from the local municipal authorities - AO has computed long term capital gains in terms of Sec.47(iii) of the Act, on land earmarked for road, on the ground that when the assessee has converted her own land into public roads, there is an extinguishment of right in the land which amounts to transfer within the meaning of Sec.47(iii) - HELD THAT:- We ourselves do not subscribe to the reasons given by the AO for the simple reason that the land earmarked for public utility purpose in terms of municipal regulations while forming residential lay out, cannot be brought to tax either u/s.47(iii) of the Act or u/s.45(2) of the Act, because, relinquishment of right in land earmarked for common utility purpose, cannot be considered as extinguishment of any right in property which can be considered as transfer within the definition of Sec.47(iii) - the provisions of Sec.45(2) of the Act, also cannot be invoked to compute business profits when the land has been converted into stock-in-trade, because, the assessee has not transferred the land for a consideration.
We are of the considered view that when the assessee has relinquished her right in the land earmarked for common utility purpose in terms of regulatory requirements and also executed Gift Deed in favour of the Commissioner, Virudhachalam, without any consideration, then, the question of computing long term capital gains on such land and also business profit in terms of Sec.45(2) of the Act, does not arise.
In this case, the assessee has executed a Gift Deed dated 22.03.2019 and handed over the land in favour of the Commissioner, Virudhachalam Municipality. In our considered view, said transaction neither attracts capital gains as per Sec.47(iii) of the Act, nor business profit as per Sec.45(2) - We are of the considered view that the AO is completely erred in taxing deemed long term capital gains and deemed book profit in respect of 40,386.81 sq.ft. land earmarked for public utility purpose and handed over to local municipal authorities. CIT(A) after considering relevant facts has rightly deleted the additions made by the AO and thus, we are inclined to uphold the order of the Ld.CIT(A) and dismiss the appeal filed by the Revenue.
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2022 (12) TMI 1125
Assessment u/s 153A - disallowance of deduction u/s 80IC - HELD THAT:- We note that the assessment was framed u/s notice u/s 153A of the Act. In the assessment order, no specific reason has been given by the Assessing Officer for making disallowance. He has not pointed out the defect if any noted in the books of accounts of the assessee warranting the said disallowance.
In our considered opinion, CIT(A) has taken a correct view of that matter. Without pointing out any shortcoming in the claim of the assessee in terms of section 80IC of the Act, no disallowance is sustainable. More so when the AO himself noted that the assessee has furnished complete details and no defect has been pointed out. In this view of the matter, in our considered opinion, there is no infirmity in the order of the Ld. CIT(A), hence, we uphold the same.
Whether addition has been made de-hors incriminating material found during search? - The assessee had also relied upon Hon’ble jurisdictional High Court decision in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT ]
CIT(A) has dismissed this ground of the assessee. We find that the same is only of academic interest. As, we have upheld the Ld. CIT(A)’s order on merits and the Revenue’s appeals are liable to be dismissed. Accordingly, the Cross Objections of the assessee are also dismissed as infructuous.
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2022 (12) TMI 1124
Assessment u/s 153C - Period of limitation - 6 years for the purpose of 153A and 153C - HELD THAT:- As in this case, there was a search conducted on 07.04.2016. AO’s satisfaction for starting 153C proceedings against the present assessee was recorded on 29.03.2019. Taking this into account, six preceding assessment years are 2014-15 to 2019-20 which excludes AYs 2012-13 & 2013-14.
This is as per the ratio laid down in the case of CIT vs. RRJ Securities Ltd.. [2015 (11) TMI 19 - DELHI HIGH COURT] and in Karina Airlines International Ltd.[2021 (6) TMI 368 - ITAT DELHI] had held that the amendment brought by the Finance Act, 2017 would not be applicable as it is prospective. It is not the case that Hon’ble High Court has reversed the above decision of ITAT, Hence, following the precedence, we reject the pleadings and submission of the ld. CIT DR for the Revenue. In the present cases, since the date of search was 07.04.2016 the amendment brought by the Finance Act, 2017 would not be applicable. Accordingly, respectfully following the precedent as above, we do not find any infirmity in the order of the ld. CIT (A). Hence we uphold the same. Appeals filed by the Revenue are dismissed.
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2022 (12) TMI 1123
Levy of penalty u/s 271C - Whether appellant is entitled to immunity from penalty as the appellant has opted for VSVS in respect of order u/s 201(1)? - HELD THAT:- It is pertinent to note that the assessee filed application dated 09.12.2020 wherein the assessee opted for Vivad se Vishwas Scheme and the Revenue issued Form No. 3 on 11.02.2021 thereby determining the settlement amount. Which was paid by the assessee on 19.03.2021 as per Form 4 and Form 5 was issued on 09.04.2021 thereby giving order for full and final settlement of tax arrears in respect of the dispute under Section 201(1)/201(1A) of the Act. Since the dispute is related to the quantum of 201(1) proceedings the same is already settled and therefore, penalty cannot be imposed subsequently under Section 271C of the Act. Thus, the penalty proceedings by the Department and confirm by the CIT(A) is deleted. The appeal of the assessee allowed.
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2022 (12) TMI 1122
Validity of Reopening of assessment u/s 147 - notice issued to a non-existing company - non intimation of name of the company has been struck off from RoC - HELD THAT:- As the name of the company has been struck off from RoC on 05.04.2008 itself, the assessee officially did not communicate to the AO about striking off name of the company. Further, it was only when the notice u/s.148 of the Act, was served to the Director of the assessee company by Notice Server, the Director has written endorsement in the notice about striking of name of the company from the RoC. From the above, it is very clear that the assessee did not inform the AO as required under the law about striking off name of the company from the RoC and hence, we are of the considered view that case law referred to by the assessee has no application to facts of the present case and thus, we are of the opinion that there is no merit in the legal ground taken by the assessee on the issue of notice u/s.148 of the Act, and consequent assessment proceedings and hence, the ground taken by the assessee for all three assessment years is rejected.
Approval of competent authority as required u/s.151(2) of the Act, before issue of re-assessment notice u/s.148 - HELD THAT:- In this case, for the AY 2003-04, DR fairly agreed that instead of JCIT, the CIT-III, Chennai, has approved issue of notice u/s.148 - for the AY 2003-04, the CITIII has granted approval instead of the Addl. CIT/JCIT as prescribed under the law and thus, notice issued u/s.148 of the Act, on 30.03.2010 for the AY 2003-04, is bad in law and consequent assessment proceedings is null and void. As regards AYs 2004-05 & 2005-06, DR placed evidences to prove that the Addl.CIT, Range-V, Chennai, has granted approval for issue of notice and in our considered view said approval is in accordance with law as prescribed u/s.151(2) of the Act and thus, re-assessment notice issued u/s.148 of the Act, and consequent assessment proceedings are valid and thus, we reject the ground taken by the assessee for the AYs 2004-05 & 2005-06. To sum up, notice u/s.148 of the Act, and consequent re-assessment proceedings for the AY 2003-04 is quashed and notice issued u/s.148 of the Act, and consequent re-assessment proceedings for the AYs 2004-05 & 2005-06 are upheld.
Additions towards consideration paid for purchase of land as unexplained investment in the hands of the assessee on the basis of survey conducted and consequent statement recorded from Mr.Chelladurai, who claims to be an real estate agent - We find that the AO has treated difference between consideration paid for purchase of land as per books of accounts of the assessee and as per statement of Mr.Chelladurai as unexplained investment in the hands of the assessee. The assessee claimed that entire land transaction has been owned up and also income arises out of land transaction has been offered by M/s.Wescare (India) Ltd. We find that if at all the claim of the assessee is correct, then, the question of making further additions in the hands of the assessee towards very same land and consequent compensation / gain does not arise. But, facts remain that whether M/s.Wescare (India) Ltd., has considered the transaction in their books of accounts and also offered to tax compensation / profit arise out of land transactions is not clear. Therefore, we are of the considered view that the issue needs to go back to the file of the AO for both the assessment years to re-examine the claim of the assessee in light of agreement between the parties and also claim of the assessee that M/s.Wescare (India) Ltd., had offered the income in their hands. Hence, we set aside the issue for both the assessment years to the file of the AO and direct the AO to re-examine the claim in light of various averments made by the assessee and decide the issue in accordance with law.
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2022 (12) TMI 1121
Full credit of TDS as claimed resulting into grant of short refund - whether entire receipt pertaining to TDS was duly reflected in the accounts of the assessee supported by the reconciliation submitted justifying grant of full credit? - HELD THAT:- A closer scrutiny of the Ld.CIT(A)’s order and Form No.26AS revealed that while the Ld.CIT(A) had noted this mismatch in Form No.26AS as on the date of processing of the return u/s 143(1) i.e. 10-12-2019 and at time of rejection of the rectification application-filed u/s 154 of the Act on 14-8-2020,the Form No.26AS filed before us by the assessee was updated form with data updated till 23-7-2021. Which means that, subsequent to the passing of the rectification order, and the order of the CIT(A) which was passed on 26-4-2021, the assessee had got its TDS data rectified ensuring that the TDS shown as not deducted on receipts from various parties in the list in para 4.4 of the CIT(A) order above, are duly reflected in the updated Form No.26AS.
This fact was pointed out to assessee who fairly admitted that the TDS data must have been subsequently revised and updated. In view of rectification and updation of Form No.26AS we find that the assessee does have a case of short credit of TDS being given to it in the processing of its return filed for the year under section 143(1) of the Act. But in the interest of justice, this updated Form No.26AS filed by the assessee before us, reflecting all the TDS earlier noted as not deducted but now shown as deducted, needs to be verified by the Department and for the said purpose we restore the issue back to the AO to verify the authenticity of Form No.26AS now filed by the assessee before us, and thereafter allow credit of TDS as per law. Accordingly, grounds of appeal raised by the assessee are allowed in above terms for statistical purposes .
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2022 (12) TMI 1120
Revision u/s 263 - Reopening of assessment u/s 147 - Addition being profit working out on cash deposits - surrendering a profit @8% on the balance unexplained cash deposited by applying provisions of section 44AD - HELD THAT:- AO has considered surrendered income - The assessment order reflects that AO had taken into account the peak credit balance factor also. Thus, there appears to be an erroneous exercise of jurisdiction by Ld. Revisional Authority as the issue was thoroughly examined by the Ld. AO and taking into consideration the facts and circumstances assessment order was passed.
There is force in the submission of AR, that when Ld. AO had examined the issue of deposit of cash and accepted it to be business income then Ld. PCIT was in error in setting aside the assessment order on the ground that one part of the income was assessed as per P & L account and the other part of income was assessed as per the provisions of section 44AD of the Act, because as such there was no loss of revenue and rather the P & L Account profit percentage being lower, the revenue only gained.
That being so, the assessment order cannot be considered to be one prejudicial to the interest of revenue and accordingly invoking of the jurisdiction u/s 263 by Ld. PCIT is not justified. The ground raised are decided in favour of the appellant. The appeal of assessee is allowed.
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2022 (12) TMI 1119
Capital gain computation - invoking section 50C - CIT(A) held that the Stamp Duty valuation comes into picture, only when the sale deed is put for registration. Therefore the assessee’s argument that the Jantri value of 2006 cannot be adopted, when the registration taken place only in 2011 - argument of the assessment namely since the possession of the property given in 2006-07 capital gain cannot be assessed during the AY 2012-13 - HELD THAT:- To meet the ends of justice, we deem it fit to set aside the matter back to the file of the Assessing Officer with a direction to the assessee to produce the bank accounts relating to the transaction on 15.09.2006 and 16.10.2006 and produce the copies of the bank statements, so as the Assessing officer can invoke second proviso to Section 50C of the Act. Needless to state, the assessee should cooperate with the Assessing Officer by producing the relevant bank statements, so as the A.O. can pass a fresh assessment order. For this reason, the appeal is allowed for statistical purposes.
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2022 (12) TMI 1118
Revision u/s 263 - Entitlement to deduction u/s. 54F - as per CIT had not applied his mind with regard to the ownership of two residential houses by the assessee as on 31.03.2015, which are reflected in the balance sheet, but simply granted the deduction u/s. 54F on purchase of a new property which is against the provisions of Section 54F - AO has not discussed any details either in the assessment order or in the notices issued to the assessee whether the assessee fulfills the conditions as prescribed u/s. 54F - HELD THAT:- As seen that the assessment order passed by the Assessing Officer is without any details and no information about the claim of deduction u/s. 54F of the Act more particularly when the claim is to the extent of Rs. 3,96,79,796/- by the assessee. Though the A.O. asked the assessee to justify the deduction claimed in computation of capital gain along with supporting evidences through notice issued u/s. 143(2) of the Act and the assessee made simple rely which is extracted in Para 6.1 above. The same does not details about the already existing property details, other information.
Thus in our considered opinion that the Assessing Officer has not conducted necessary inquiry before allowing deduction u/s. 54F, but simply allowed the claim made by the assessee. Section 54F of the Act is not applicable, if the assessee at time of transfer of original assets, owns more than one residential house, other than the new assets acquired by him. Thus without applications of the provisions of law, the assessing officer has granted the relief to the assessee which otherwise the assessee is not eligible for the claim of deduction u/s. 54F of the Act.
PCIT has invoked the provisions of Section 263 thereby set aside the erroneous assessment order passed by the Assessing Officer and directed the A.O. to pass a fresh assessment order after allowing adequate opportunities to the assessee in accordance with law following the prescribed procedure and duly examining the issue of allowability of deduction u/s. 54F - Decided against assessee.
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2022 (12) TMI 1117
Revision u/s 263 by CIT - assessee has claimed deduction of interest income u/s. 80(P)(2)(d) - PCIT noted that the ld. AO has not verified the issue of allowability of deduction u/s. 80(P)(2)(d) while passing the order u/s. 143(3) of the act and the order is erroneous in so far as it is prejudicial to the interest of revenue - HELD THAT:- As the A.O while framing the assessment had taken a possible view, and revenue did not demonstrate the error remain on the part of the ld. AO. In fact, when the ld. AO has conducted the required enquiry and not violated any of the conditions mentioned for revision of order as required by Explanation 2 of Section 263 of the Act, the order passed by the Assessing Officer could not be deemed to be erroneous so as to be prejudicial to the interests of the revenue
As long as the action of the Assessing Officer cannot be said to be lacking bonafides, his action in accepting an explanation of the assessee cannot be faulted merely because it could have been lawful to make mere detailed inquiries or because he did not write specific reasons of accepting the explanation. As for learned PCIT's observations regarding accepting the explanation "in a routine and perfunctory manner", there is nothing to question the bonfides of the AO or to elaborate as to what should have been 'appropriate' evidence. The fact remains that the specific issue mentioned and has been examined and the contention of the assessee accepted by the Assessing Officer. Merely because the Assessing Officer did not write specific reasons for accepting the explanation of the assessee cannot be reason enough to invoke powers under section 263, and non-mentioning of these reasons do not render the assessment order "erroneous and prejudicial to the interest of the revenue".
We vacate the impugned revision order. The assessee gets the relief accordingly.
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2022 (12) TMI 1116
Addition based on estimated additional gross profit - AO on the basis of the difference of gross profit @4.37% as compared to earlier year (i.e. 21.23% for AY 2012–13 - 16.86% for AY 2013–14) made the addition - plea of the assessee that the unaccounted investment in stock of WIP of cranes amounting to Rs. 3,15,32,000, accepted by the partner of the assessee, was valued at sales price - HELD THAT:- It is evident that the unaccounted investment in stock of WIP of cranes amounting to Rs. 3,15,32,000, is nothing but a difference of aggregated WIP of Rs. 5,73,00,000, based on sales value, and Rs. 2,57,68,000, i.e. the WIP as per the statement of stock submitted during the survey - The amount of Rs. 5,04,09,595, wherein the WIP was computed on sales value, was offered to tax by the assessee in its return of income. The other component in the aforesaid amount of Rs. 5,04,09,595, is unaccounted investment in raw materials accepted by the assessee amounting to Rs. 1,88,77,595.
When the sale value of the cranes, which was considered for computation of WIP, has already included the profit component, the addition made by the AO, by firstly excluding the amount declared by the assessee and estimating the gross profit thereafter, results in double addition. Revenue has not brought anything on record to controvert the findings of the learned CIT(A) that the Sales Tax/VAT assessment order has accepted the assessee’s books of account. Appeal by the Revenue is dismissed.
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2022 (12) TMI 1115
Nature of expenses - expenses pertain to a film which may not be released - legal fees paid to the retainer advocates firm for taking care of litigation - whether expenditures were incurred for exclusively for the purpose of its routine business? - disallowance for the short reason that these? - HELD THAT:- The approach is clearly erroneous because as long as it is not in dispute that the expenses are incurred wholly and exclusively for the purpose of business, as indeed is the position in this case, there is no occasion for disallowance of such expense. Whether the film is released or not, or whether it turns out to be a dud project, as in this case, is wholly irrelevant. We, therefore, uphold the plea of the assessee and direct the Assessing Officer to delete this disallowance - The assessee gets the relief accordingly.
Disallowing service charges paid to the agent involved in the contract for the film ‘Sher’ with film producing company - CIT(A) failed to appreciate that having failed to release the film ‘Sher’, the appellant has abandoned the said film permanently and thus the expenditure incurred in relation thereof is business loss/revenue expenditure - HELD THAT:- We find that, as subsequent developments turned out, there is no dispute that the film “Sher‟ was finally abandoned and it was never released. The entire expenditure incurred on the said project, including these expenses, constitute business loss and are allowable as such. We, therefore, uphold the plea of the assessee, and, accordingly, direct the Assessing Officer to delete the impugned disallowance - The assessee gets the relief accordingly.
Interest expenditure paid in respect of funds borrowed in the normal course of business - HELD THAT:- Only reason for impugned disallowance was that film was not released during the year, and as such interest was capitalized. However, once the film was eventually an abandoned project and was never released for public exhibition, the very basis of disallowance ceases to hold good in law. The entire project has turned out to be a dud project, and has come to an unsuccessful end. In this situation, and bearing in mind the fact that interest expenses having been incurred wholly and exclusively for the purpose of business is not in doubt anway, we deem it fit and proper to delete this disallowance as well. The assessee gets the relief accordingly.
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2022 (12) TMI 1099
Reopening of assessment u/s 147 - Allowability of expenses incurred on advertisement and marketing by the Petitioner - change of opinion - Reopening beyond period of four years -
As decided by HC [2021 (11) TMI 776 - BOMBAY HIGH COURT] Once the Assessing Officer had applied his mind in the regular assessment proceedings of Petitioner having incurred advertisement and marketing expenditure, it is not open for the Assessing Officer to reopen the assessment - when the primary facts necessary for assessment are fully and truly disclosed, the Assessing Officer is not entitled to a change of opinion for commencing proceedings for reassessment. AO could not have reopened the assessment merely on the basis of change of opinion
HELD THAT:- We are not inclined to interfere with the impugned judgment and hence, the special leave petition is dismissed.
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2022 (12) TMI 1098
Education cess as a disallowable expenditure u/s 40(a)(ii) - assessee states that in view of the amendment vide the Finance Act, 2022 with retrospective effect from 01.04.2005 to Section 40(a) (ii) of the Income Tax Act, 1961, the present appeal has to be allowed.
HELD THAT:- In view of the statement made, we direct that the Education cess paid by the respondent-assessee would not be allowed as an expenditure under Section 37 read with 40 (a) (ii) of the Income Tax Act, 1961.
Assessee states that they have also paid the applicable tax on the disallowance.
Recording the above, the appeal is allowed in the aforesaid terms, without any order as to costs.
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2022 (12) TMI 1097
Deductions u/s 80-IBA - writ of Mandamus to direct the Respondent to extend the time period for completion of construction projects from five years to seven year under section 80-IBA(2) (b) - HELD THAT:- The Petitioner’s claim to be discriminated against, on the basis that its members are similarly situated to persons covered under the provisions of section 80-IAC of the Act. In order to prove the element of discrimination, the Petitioner would be required to plead specific facts to demonstrate that its members as a class and those covered by the provisions of section 80- IAC of the Act are similarly situated
The Petitioner would be required to make out a case for the issuance of a writ of Mandamus in exercise of powers vested in this Court under Article 226 of the Constitution of India for directing the Respondent, or for that matter, the legislature to legislate and extend the timelines in the provisions of section 80-IBA(2)(b) of the Act, 1961 as claimed in the petition.
We find the present petition is grossly lacking in sufficient pleadings as would be required from making out a case of discrimination as claimed by the Petitioner. The petition lacks all material particulars required to be stated in the pleadings, to draw some parity or similarity between members of the Petitioner and persons stated to be covered by the provisions of section 80-IAC of the Act.
Further applying the ratio laid down in Supreme Court Employees Welfare [1989 (7) TMI 333 - SUPREME COURT] this Court would not exercise its jurisdiction under Article 226 of the Constitution of India, to issue a writ of Mandamus to the Respondent and much less to the legislature, directing the legislation in the nature sought by the Petitioner in the reliefs claimed in the petition.
We are of the opinion that no writ of Mandamus would lie to direct the legislature and accordingly, we dismiss the petition.
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2022 (12) TMI 1096
Exemption u/s 10(37) - entitlement of a person for exemption under Clause 37 Section 10 - land needed for the public purpose within the meaning of Land Acquisition Act - acquisition of the land at Village Dindoli by the SMC was for the Sewage Treatment Plant - whether land not being used as an agricultural land two years prior to the transfer to SMC? - HELD THAT:- CIT(Appeals) and the ITAT both have held rightly that the acquisition of the land at Village Dindoli by the SMC was for the Sewage Treatment Plant and this is a compulsorily acquired land under the provision of Section 107 of the GTP & UD Act. The land was needed for the purpose of Town Planning Scheme or the Development Plan and therefore, it was deemed to be the land needed for the public purpose within the meaning of Land Acquisition Act.
Deed of transfer of the land was signed between the SMC represented by the Director of the Town Planning and the assessee along with his family members - The proceedings u/s 77 of the BPMC Act were pending at the time of registration of sale deed for transfer of property and pending the reservation, efforts were made by the farmers and SMC to negotiate the price of land to be transferred in favour of the SMC to avoid the compulsory acquisition of the land by SMC under Sections 77 and 78. This negotiation had been vetted by the Standing Committee of the SMC vide its Resolution No. 1758 dated 28.12.2007 where the SMC had agreed to pay land owners at the rate of Rs. 2,000/- per sq.mt for their land and to not invoke provisions of Sections 77 and 78 (Compulsory Acquisition) of Gujarat Town Planning Act.
The land had been transferred by the registration of sale deed by the assessee and the SMC where the purchaser had to pay stamp duty at the prevalent market rate to avoid any kind of litigation. This was a better way worked out by the authority and the land owners. This had resulted into the Assessing Officer finding it not to be a compulsory acquisition, but, more a voluntary transfer. However, this Court in case of other assessee being Dipak Kalidas Pauwala [2016 (4) TMI 431 - GUJARAT HIGH COURT] has held the requisite conditions of Section 10(37) to have been fulfilled.
The issue raised in the instant case is that the agricultural land owned by the respondent assessee should have been used for a period of two years immediately before the date of transfer for the agricultural purpose and that aspect is missed out by all authorities.
As noticed that before the Ao, the department has not raised the issue and the order AO was further challenged before the CIT (Appeals) and thereafter, before the Tribunal where, by a concurrent finding they have held in favour of the respondent. These are the factual aspects of the land not being used as an agricultural land two years prior to the transfer to SMC. This being a factual aspect never having been raised by the department and none of the authorities having opined anything on this, that cannot furnish the ground for disallowing anything under Section 10(37) of the Act. Tax Appeal is dismissed.
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2022 (12) TMI 1095
Imposition of Cost on Income Tax officers - Reduction of cost imposed by our judgment in SR COLD STORAGE VERSUS UNION OF INDIA AND 3 OTHERS [2022 (8) TMI 806 - ALLAHABAD HIGH COURT] - respondents have acted arbitrarily, illegally without jurisdiction, caused harrassment to the petitioner and abused power conferred under the Act, 1961, which resulted in creation of illegal demand of income Tax - HELD THAT:- As considering the request and steps being taken by the respondent-department to improve its working so as to rule out possibility of harassment of genuine assessees in the hands of the departmental-officers, we reduce the cost from Rs.50 lacs to Rs.5 lacs with the consent of learned counsel for the petitioner and accordingly modify our judgment dated 11.08.2022 in respect of cost only. The cost shall be deposited by the respondents within one month from today in terms of the directions given in the judgment in SR COLD STORAGE [supra].
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9911796707
